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Chief Justice Rehnquist died earlier tonight, aged 80.

I can’t pretend to mourn the man, but neither do I have any stomach for attacking the recently departed on their deathday. Clearly his family loved him, and he had many admirers, and I’m sorry they’re feeling a loss. He was without any doubt a brilliant man, and one whose accomplishments were - unfortunately, in my view - enourmous.

Nor do I have any idea what this means for the Court. (Rehnquist was already an anti-Roe vote, so Bush getting to replace him with another anti-Roe vote won’t change the balance).

Truth is, I don’t really have anything to say, yet. But I thought “Alas” readers might like a place to discuss Rehnquist and the upcoming court battles, so….

UPDATE: Whoops! P-A and I crossposted.

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So I’ve been following the Roberts debate, as has the majority of the blogosphere with interest. I had to laugh when I came across an interview of Rick Santorum conducted by CNN Anchor Aaron Brown in which Santorum hotly contests the notion that Roberts should be obligated to answer any questions on Roe v. Wade. He invokes fairness as the reasoning:

BROWN: I saw a poll the other day that said 60 percent of the country wanted to know how Judge Roberts felt about Roe v Wade. It’s a settled case. Do you think the country’s entitled to know whether he believes that that case was decided correctly?

SANTORUM: You know my feeling is, you have to look at the standard of what’s been applied in the past. And what judges in the past have been forced to answer is, you know, how they felt about, you know, sort of the black letter law, if you will. Not really looking at, how would you rule in cases…

BROWN: I’m not asking how you’d rule. This is a settled case. Roe v Wade is a settled case, it is settled. Is this a fair question, do you agree that that case was settled correctly? Is that a fair question to ask him?

SANTORUM: Well, let me put it this way. That question was asked of Judge Ginsberg, it was asked of Judge Breyer and neither of them answered the question.

BROWN: So the answer is no you don’t think the country is entitled…

SANTORUM: Well I think, what’s good for the goose is good for the gander. I mean, it’s remarkable that we have an ACLU lawyer, not just someone who — I mean, an ACLU lawyer who gets a pass on their ideology for the United States Senate and we have a lawyer who is really a lawyer’s lawyer, he’s been all over the place, is clearly not someone with an agenda and all of a sudden they have to answer litmus test kinds of questions. Is that fair? I would say it’s not fair.

BROWN: All I want to know is if — it’s really a simple question.

SANTORUM: I’m giving you the answer. The answer is no. If it wasn’t answered in the past, it shouldn’t be answered in the future.

Well, to an extent this seemed reasonable - why after all should we hold SCOTUS nominee’s to different standards with regards to questioning when it comes to divisive issues. But then I came across several posts of outrage, that indicated Ginsburg and Breyer had both answered the question in a way that allowed for some transparency (especially in the case of Ginsburg). I had to do some digging, but I found two interesting things - first of all, it seems that the Federalist Society is championing their amnesiac brother, Roberts. They have published an attack based breakdown of the Ginsburg hearing, coupling it with talking/arguing points that the conservatives might be able to use in order to shield Roberts from answering any questions put to him, as well as omitting the answers she gave that might prove detrimental should he answer them with the same candor she did .

Thankfully I was able to find the testimony that the Federalist Society omitted on her responses during her senate hearings to the issue of abortion at Issues2000.org:

Senator Hank Brown asked Ginsburg about equal rights for men and women on the question of abortion.

Ginsburg: I will rest my answer on the Casey decision, which says in the end it’s her body, her life, and men - to that extent - are not similarly situated. They don’t bear the child.

Brown then asked her to explain further about whether the rights of men and women are not equal in this case.

Ginsburg: I said on the equality side of it, that it is essential to a woman’s equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints, you are disadvantaging her because of her sex.. The state controlling a woman would mean denying her full autonomy and full equality.

Breyer was vague and called it ’settled law’, which implied at least that he personally had no desire for it to be revisited. Quite honestly, I’d have liked more transparency, but then again Breyer didn’t have the same questionable background issues regarding this particular issue of ’settled law’ that Roberts does.

Ultimately it showed me that this in fact was considered not only a valid line of questioning, but also worthy of weight with regards to the Senatorial hearings, and their conclusions of particular nominee’s. With regards to the other answers Ginsburg refused to entertain or answered in a general manner, the responses also included detailed explanations of why her answers were thus.

In some questions regarding Antitrust issues, she indicated non-expertise having only 12 of such cases under her belt, but then offered further explanation on a particular case to give an example of her beliefs. This hardly constitutes an example of her attempting to stymie the process of fact finding.

Consistently she attempted to be specific to give ideas of her general ideology without addressing cases that as she stated were slated on the current or potential dockets.

While conservatives are attempting to paint a similar picture, what seems stunningly evident to me is that her answers were not so much evasions, like Roberts, but instead attempts to answer with transparency while respecting the integrity of the system. That’s my interpretation, at any rate.

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From Wonkette:

…We’re shocked at how little it took for our observation about Roberts’ wrestling/drag career to morph from “heh-heh” to “HEL-LOOO, MARY!” We’re been trying to get people to buy Bush as a dog-fucker for years and Powerline has yet to write an outraged editorial.

Okay, serious now: We don’t actually think Roberts is gay. We totally wish he was, though! Someone needs to keep Souter company.

An interesting article on Women’s E News argues that, once Justice Roberts joins the court, Justice Kennedy will become the most important abortion rights vote - the one that other justices will have to sway. Kennedy has been pro-Roe in recent years, but he was with the 4-5 minority that voted to allow states to ban vaguely-defined “partial birth” abortions, even when they were necessary to preserve a women’s health.

At the end, E News touches briefly - far too briefly - on the most important legal challenge to abortion rights facing the Supreme Court:

Also to be reviewed [by the Court later this year] is the basis upon which women’s advocates may challenge anti-choice laws, an important issue for keeping open the courthouse doors when burdensome restrictions are passed.

I wish they had spent more time discussing this. If the Court decides to apply “the Salerno standard” to abortion cases, it will become ten times harder for pro-choice organizations to fight new abortion bans and restrictions in the courts. Even an obviously unconstitutional abortion ban might remain good law for many years while court cases drag on, enabling pro-lifers to effectively ban abortion in far more cases than they currently can.

This is what Jack Balkin was referring to when he wrote “Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.”

It may be a mistake that so many pro-choicers, when discussing the Supreme Court and abortion, are talking about the future of Roe and Casey. Until Justice Kennedy radically changed his views, or Ginsberg or Stephens unexpectedly retires, Roe is safe - but that doesn’t mean that practical access to abortion is being upheld by the Court. The much more immediate danger is that no one has any idea how Kennedy or Roberts will vote on applying the Salerno standard to abortion cases.

[None of the quoted snippits in this post were written by me; they’re all from essays or posts I thought were interesting, found on other websites.]

• The Gimp Parade on John Roberts and Disability Rights: In 2001, Slate’s Dahlia Lithwick presented a clear and pithy summary of the arguments before the Court, where thanks to Roberts it was concluded that the loss of a job due to severe work-related repetitive stress injury does not qualify someone for coverage under the ADA. Despite carpal tunnel syndrome and tendonitis resulting in “lumps the size of a hen’s egg in [her] wrists, and [her] hands and fingers… curled up like animal claws,” the Court ruled that plaintiff Ella Williams was not disabled because of Robert’s legal arguments: “She can brush her teeth, wash, bathe, do laundry and cook breakfast. She can take care of personal chores around the house. [Her wrist injury] is only a problem at work.”
• Jack Balkin on Justice Roberts and abortion: …Replacing Justice Sandra Day O’Connor with Roberts is likely to mean the Supreme Court will uphold many more laws restricting abortion. The list of such laws is endless, ranging from partial birth abortion bans to limits on abortions for minors. Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar. (Via Dispatches).
• Ed at Dispatches From The Culture Wars on the Supreme Court confirmation process: Not only do I want to know the answers to those questions, I think nominees have an obligation to answer them in front of the entire nation. They are asking to be given a lifetime appointment to the nation’s highest court where their decisions will have more of an impact on our lives and our liberty than virtually any other body in the world. Our liberty is in their hands and they have an obligation to tell us what they intend to do with it before we give that power to them. I don’t want to hear that the nominee is kind, decent, trustworthy, thrifty and brave. I want to hear what they would do with their almost unbridled power to interpret the Constitution because that document is the backbone of American liberty. And any Senator who does not ask such questions shouldn’t be in office. The problem is not that the Senate explores a nominee’s ideology, it’s that they generally do so dishonestly and badly and only in the service of their own political interests.
• Russel Sadler: The Northwest timber industry and its industrial foresters have never forgiven Dr. Jerry Franklin for methodically dismantling their cherished orthodoxy. Until the 1980s, industrial foresters were taught that old growth forests were “dead, dying and decadent.” Old growth forests were “biological deserts” that had to be cut down before they burned down and replaced by “healthy, vigorous young forests.”
• Sara Butler, reviewing the book Taking Sex Differences Seriously: One doesn’t have to be a believer in feminist ideology to be a little skeptical of a theory that automatically gives men a certain degree of freedom from nature that women do not have. According to this line of thought, sexual chastity does not come naturally to men, so we shouldn’t be all that surprised when they fail. Women, however, are supposed to have nature on their side; if they still insist on being sexually active, even promiscuous, they must be really awful…much more depraved then their male counterparts who behave the same way.
• The Mighty Middle on Democrats: This is where you’ve brought us. Roe is going down. The Holy Fucking Grail is going down. Get used to it. Saladin is taking Jerusalem back from you. The other side won, you lost, and you know why you lost? Because you are deeply stupid people. Your favorite perjorative for Mr. Bush: stupid. And yet, he’s the one in charge, despite everything, despite the fact that he is one of the worst presidents in American history, he’s in the driver’s seat and you are standing on the fucking curb holding a sign that says “Will Organize For Food.” You’re sitting in your war rooms writing up your talking points, passing you memos back and forth and all of it is like some Twilight Zone episode where you’re dead and don’t know it. Cue Rod Serling: Consider the Democrats.

  Shyamalan on Politics: “I see dead people.” “No, those are Democrats.”

• Brutal Women on the latest Star Wars flick: In fact, every scene Padme is in, she’s sitting on a couch or standing at a window or standing on the balcony staring blankly at something, pregnant, (because everyone knows pregnant women live like invalids) waiting for the scene to start. Waiting for Anakin or some Jedi to come in and break up her staring-at-the-wall reverie. Natalie Portman checked out of this movie a long time ago. And who can blame her? It was utterly obvious from the writing that she was only there as a peice of scenery. Her hair and clothes changed drastically with every scene; she was a walking, talking set peice.
• Mark Grabor on conservative judicial activism: President Bush demonstrate his usual capacity for double-speak last night when he praised Judge John Roberts as a jurist who would “not legislate from the bench.” As note on this blog and more extensively in Keck, THE MOST ACTIVIST SUPREME COURT IN HISTORY (mandatory reading during the confirmation hearings), the Rehnquist Court does nothing but “legislate from the bench” with Justices Thomas and Scalia being the most active judicial legislators. Consider the numerous areas in which they impose or would impose limits on state and federal officials…

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