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The Myth of Justice Souter as a Yankee Republican:
Some people say that Justice Souter is a Yankee Republican, and that he seems like a liberal only because the GOP has shifted so far to the right. In an earlier day, the argument runs, he would have been considered a Justice on the conservative side. I confess I find this claim puzzling, and I wanted to offer some thoughts about why.

  First, consider the fact that the two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.

  I think it is generally recognized that Justice Ginsburg is not a Yankee Republican, and that she would not have been a Republican if the GOP had not become more conservative. Everyone pretty much agrees that Justice Ginsburg is very much a Democrat and at least somewhere on the left. But if the Souter/Ginsburg pairing is the closest pairing on the Court, closer than Thomas/Scalia, then isn't it a little strange to say that one is a liberal Democrat but the other is a Yankee Republican who only "seems" liberal?

  Next, consider the cliche that it's Justice Kennedy's Court, and that the really big ideological cases are likely to be 5-4. That cliche has some force because in big ideological cases, Justice Souter is a safe vote for the liberal side. Souter is part of the "four" on the left side of the Court that makes Kennedy the swing vote. If there's a case about affirmative action, abortion, gay rights, federalism, takings, the Second Amendment, or any other "hot" area, everyone simply assumes that Justice Souter is voting for the liberal side. Usually there's no debate on this: You know where Souter is coming out, because that's where he pretty much always comes out in the big ideological cases.

  Making broad claims of ideology can be tricky business, so a few caveats are in order. Perhaps Justice Souter has policy views that are different from his legal views. Or perhaps he has traditionally Republican views on some policy issues that don't come up in Supreme Court cases. And there are always various strains within ideologies; A moderate liberal might seem almost conservative to someone far on the left. Still, just based on his votes — which is the usual way to measure and discuss a Justice's ideology — it seems to me that Justice Souter has voted as a reliably liberal Justice.

Related Posts (on one page):

  1. Is Justice Souter a "Burkean" Conservative?
  2. The Myth of Justice Souter as a Yankee Republican:
Volokh Groupie:
Or he just earned that moniker by hating this guy

The object of Yankee hate.


Couldn't say I'd blame him.
5.4.2009 1:02am
My Middle Name Is Ralph:
I always thought the claim that Souter was a Yankee Republican comes from the fact that he, like most New England Republicans, has moved away from the Republican Party. He wasn't always a certain vote for the liberal bloc. Just like Specter defected from the Republican Party, Souter defected as well. His resignation on Obama's watch is just confirmation of something that occurred a while back.
5.4.2009 1:13am
Allan (mail):
Spector and Souter are Republicans in the 1960 Dirksen sense.

The Republican party of today is the southern wing of the Democrat party of the 1940s and 1950s. Strom Thurmond felt very comfortable as a Democrat in 1960 and a Republican in 1990.

That is, the Republicans have moved to the right. And it left Spector.

I think, were he just getting into politics, Senator Byrd would come up as a Republican.
5.4.2009 1:19am
Hadur:
Liberals love to use the rhetorical device of "somewhere out there, is a reasonable Republican. I respect that reasonable Republican. But [Republican I am talking about] is different."

It used to be John McCain who was brought up this way when talking about George W. Bush too, which is funny given how he was subsequently vilified.
5.4.2009 1:21am
Volokh Groupie:
It's hard to argue the democrats have became the big tent and the republicans have at least moved somewhat rightward (though I agree w/the general premise of the post that it hasn't moved so right that it ever left Souter). Senators like Tester, Webb, Casey Jr., Landrieu, Lincoln, Begich etc would have been split at least 50-50 between the two parties a decade ago. The dems have done a better job courting and accepting moderate candidates in redder states.

Souter is too far left to be part of this conversation though.
5.4.2009 1:25am
David Welker (www):
First, I have no opinion on whether Souter is a "Yankee Republican" nor do I think it matters. It does seem that the Republican party has become increasingly "purist" and is in fact driving moderates out. Whether or not Souter in particular is part of that trend I think is a very minor issue. Not much is at stake here. Basically, I don't think it matters much whether Souter is a "Yankee Republican" or not.

That said, I think your caveats you mention give rise to a lot more uncertainty than you give them credit for, at least in my mind. Law and politics are not exactly equivalent. One can have a stereotypically "liberal" approach to Constitutional and statutory interpretation and have conservative policy preferences. (Indeed, I seem to recall those who take a "conservative" approach to interpretation arguing that such and such result is necessary as a matter of law, even though they do not like that result as a matter of policy. I am thinking especially about Justice Scalia with respect to various Constitutional criminal procedure cases, as an example. Likewise, I imagine that one could have a "conservative" approach to Constitutional and statutory interpretation, and yet have "liberal" policy preferences. At least, I think, that this is one of the points Justice Scalia makes (I think correctly) in A Matter of Interpretation.

Of course, lets get real for a second. It does seem that at the end of the day, the main thing that seems to drive people to particular interpretative approaches is their politics. Conservatives are very much aware of the "convenient" fact that certain "neutral" interpretive methodologies they prefer (or even self-righteously proclaim are the only legitimate methodologies) tend to lead to policy results that are pleasing to conservatives (even if in particular cases those methodologies lead to results that liberals would like better or just as common, results that no one likes -- this is a small price to pay for a methodology that leads to pleasing results from a conservative perspective in the majority of cases). Likewise, liberals are very much aware that the interpretative methodologies they endorse enable liberal results (but also, I think enable a lot of other potential results -- like libertarian results -- think about Lochner.)

I am not saying that every single conservative and every single liberal chooses their interpretative methodology based on policy preferences. I just think that is true in the vast majority of instances. I for one don't buy into conservative interpretative methodologies independently of my policy preferences, because I think conservatives tend to fail to recognize that the choices they make in interpretation are actually choices and not necessarily objectively required by text, precedent, and other objective evidence of law. (That is, I think conservative too easily believe that certain result, which so often just "conveniently" happen to mirror their own policy preferences, are compelled by the rule of law.) But, I think the correlation between interpretative methodologies and political preference it too deeply ingrained for their not to be causation in the real world. That is, political preference causes people to favor particular interpretative methodologies (and rarely vice-versa and rarely is the issue of interpretative methodology truly divorced from what results one things is likely, most of the time, by choosing a particular methodology.)

Anyway, Orin is asserting that Souter is not a Yankee Republican. He is probably right. Because if Souter were a Yankee Republican, he probably would have chosen more "conservative" interpretative methodologies. But, I think it is at least possible that Souter is a Yankee Republican but has chosen more "liberal" interpretative methodologies despite his policy preferences, because he thinks that those interpretative methodologies are better without taking into consideration his policy preferences. I think that anyone who thinks that Law and Politics can be separated (at least in theory, even if all to little in fact) -- like I believe Orin does -- must at least concede that is a possibility.
5.4.2009 1:30am
David Welker (www):
Bah, I apologize for the typos in my comment above. Of course, I could read and edit my post before hitting that "POST COMMENT" button. But, for some reason, I have a bad habit of not doing that...

Anyway, maybe I should start trying to reform this bad habit instead of apologizing after the fact. That is a thought...
5.4.2009 1:36am
Frater Plotter:
It used to be John McCain who was brought up this way when talking about George W. Bush too, which is funny given how he was subsequently vilified.
That's because McCain decided he needed to turn himself into a Bush clone in order to get elected -- see, e.g., his flip-flopping on the Iraq war and on torture.
5.4.2009 1:36am
Dave N (mail):
Volokh Groupie,

You listed six moderate Democrats and suggeted that the split would have been 50:50 a decade ago. Yet I would note that of the six you list, three are actually the children of other prominent Democrats (Casey, Jr., Landrieu, and Begich).

Lincoln is from the southern state where the Republicans have had the hardest time getting traction (politics in Arkansas is still very territorial and Bill Clinton used his immense political skills to keep his home state blue).

Montana has had a progressive Democratic party (think Mike Mansfield) that is curmudgeonly conservative in its own ways on certain issues important to the west. Tester fits in that tradition.

That leaves Webb. In another era, he may have been a Republican (he did serve in the sub-cabinet of a Republican President, though as a "Reagan Democrat"). But Virginia has been finely balanced and could probably still fit in with the Virginia Republicans if he tried. So I will give you one of the six you named.
5.4.2009 1:38am
Volokh Groupie:
@Frater Plotter
Anybody who thinks McCain 'became a W clone' needs to get their head out of MoveOn press releases. McCain didn't significantly alter his opposition to torture, was a pivotal member of the gang of 14, was out of step with Bush on climate change and was moderate on a number of other issues. This blog isn't redstate or dailykos and lets not reduce it to that level.

@DaveN
The Lincoln thing doesn't fly with me. Republicans used to have difficulty getting traction in Louisiana as well but have made major strides as they started solidifying the south. I don't see why Arkansas should be an exception. Democrats have also been a fairly strong party in Montana but Tester's victory is illustrative of the fact that the dems have ridden Bush fatigue and a big tent strategy to their current majority. Despite changing demographics/party affiliation in Colorado the same is true of Udall. Bennet will be a good test in the upcoming election. Otherwise there are more moderates I can name (this isn't to say the republicans don't have any - Snowe/Collins/McCain/Graham are some obvious ones) who the dems have built their majority on - Hagan, the Nelsons, Warner, Bayh, etc.
5.4.2009 1:51am
David Welker (www):
Volokh Groupie,

That John McCain was moderate on a number of issues makes him precisely no different than George W. Bush, who was also moderate on a number of issues. I agree that John McCain never became a Bush clone, but it is quite clear that he shifted many of his positions (like his opposition to the Bush tax cuts) in an attempt succeed politically rather than as a matter of principle.
5.4.2009 1:54am
Cornellian (mail):
He's a Yankee Republican, another term for which is Rockefeller Republican. That is to say, he's a Republican from back before the days before Republicans were known as the "conservative" party and Democrats the "liberal" party. Back when they were both just parties, there were lots of liberal Republicans and lots of conservative Democrats.
5.4.2009 1:55am
My Middle Name Is Ralph:

McCain didn't significantly alter his opposition to torture, . . . .


Pre-campaign, McCain took the position that the US should not use coercive interrogation techniques, both the military and the CIA. In the campaign, he limited this to the military (exempting the CIA). Seems like he was for outlawing torture before the campaign but open to and/or supportive of it during the campaign. I'd call that a significant change.
5.4.2009 1:56am
Desiderius:
Cornellian,

There are still plenty of conservative Democrats. They are just too attached to their old resentments to leave, and their new masters are in no hurry to force them too.
5.4.2009 2:00am
Cornellian (mail):
There are still plenty of conservative Democrats.

Indeed there are, and quite a few liberal Republicans as well, though very few holding elected office in D.C. Partly that's a function of regional variations - if you're running as a Republican in Vermont you're not going to be able to run on an Alabama Republican platform, partly it's a function of different meanings of "conservative" and partly it's a function of one's priority. If you think abortion is murder and stopping it by any means possible means more to you than all other issues, then you're probably going to vote Republican even if you take liberal positions on every other issue.
5.4.2009 2:12am
Paul Allen:
Orin:

You've just nailed a very widely disseminated talking point.
5.4.2009 2:19am
Volokh Groupie:
@Ralph

Pre-campaign McCain was against using cruel and inhumane treatment and he stayed true to that position during the campaign. The point of evidence used by McCain opponents during the campaign as evidence of his 'shift' was his vote against the bill to limit interrogative techniques to those listed in the army field manual. He was fairly clear that he already opposed torture under the DTA and believed the bill was too restrictive because it constricted interrogators to only listed military techniques even in non military situations (a distinguishable and reasonable position). He also came out again against waterboarding during that vote/episode. McCain never made a blanket declaration against all interrogative techniques nor did he ever give the CIA unlimited discretion in the matter.

Otherwise the question was about McCain as a moderate and whether or not he ever stopped being one. If you believe Bush was a moderate (a somewhat tenable position considering his cavalier spending and views on immigration) then its hard argue that McCain wasn't. He certainly wasn't a Bush clone.

Cornellian's point on the increased alignment of ideology and party is well taken.
5.4.2009 2:19am
trotsky (mail):
For some reason, I recall reading when Ginsburg was appointed, she was touted as a "moderate." Newsbusters, of all places, confirms my recollection:


On the June 14, 1993 NBC Nightly News, Andrea Mitchell termed Ginsburg "a judicial moderate and a pioneer for women's rights." The next morning on ABC, Good Morning America co-host Joan Lunden asked legal editor Arthur Miller: "We hear words like 'centrist,' 'moderate,' 'consensus builder.' How will she fit into this court?" Miller, a longtime friend of Ginsburg, predicted (wrongly) that she'd be a centrist Justice.


Not that Andrea Mitchell's the final authority on these issues. Just saying, though.

In any case, to echo a thought above, the Democrats are obviously the big tent party these days. Y'all see this little development, reported by the AP, on the Prairie last month?


HELENA -- Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation, adding firepower to a battery of legislative efforts to assert states' rights across the nation.

"It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," Democrat Schweitzer said.




"Democrat Schweitzer" signed a pro-gun bill that he emphasized was really about state sovereignty. Democrat Schweitzer. Let that sink in a bit.
5.4.2009 2:21am
Rich Rostrom (mail):
"Some people say that Justice Souter is a Yankee Republican"...

Who are these people? Are they the same people who in 2004 tried to portray Sen. John Kerry (lifetime ACU rating of 6) as a "centrist"?
5.4.2009 2:46am
James Gibson (mail):
I'll just sit back and wait for his memoir and see what he does in retirement. Warren Burger retired from the court only to take a paid position with Handgun Control Inc. It was right after that that he began talking against handgun ownership. It will be in his memoir that we will find out what he truly thinks of the "Best Job in the World."
5.4.2009 3:35am
tvk:
Orin, you don't account for the self-selection effect in the cases. Of course the cases come out 5-4 and Souter is on the liberal side of the 4. This is because the Supreme Court has certiorari jurisdiction and, in any case, parties will only bring cases that are close given the makeup of the Court. If the Court were comprised of four lunatic conservatives, one very conservative but not lunatic, and four just somewhat conservatives, they would still come out 5-4 and the four just somewhat conservatives would still be considered reliable votes for the left-leaning position. It is just that the issues would be whether George Bush should be president for life, gun ownership mandatory, and Christianity established as the state religion.
5.4.2009 4:22am
Michael Kochin (mail) (www):
Both Souter and Ginsburg would have been on the progressive end of the Republican party in 1925.

So how about "Herbert Hoover republicans..."
5.4.2009 4:35am
Anonymous Souter-hater:
This paper explains how Souter was sold to conservatives back in the days of Bush 41, despite Souter's being a liberal.

It was accepted for publication by the Harvard Journal of Law and Public Policy, and then withdrawn by the author at the insistence of Edith Jones
5.4.2009 5:00am
BGates:
tvk, does your attempt to come up with far-right positions represent complete ignorance of conservative thinking, or is it just that you're not that funny? Mandates and state religions are the purview of the left.

As for the idea of making Bush's term permanent, nobody wants an arrogant Chief Executive who spites our closest allies and succeeds at nothing beyond grabbing power and running up deficits, but replacing him with Bush isn't the answer. We'll just have to vote him out in 2012 (assuming he doesn't get caught up in any of the criminal investigations into Blago, Richardson, TARP, or Edwards, or any of the scandals we have to look forward to from Dodd, Murtha, Burris, Frank, Fannie Mae, and the tax cheatingest cabinet in history, or maybe some as-yet unknown criminal activity from his last 1360 days in office).
5.4.2009 5:30am
Leo Marvin (mail):
Being part of the liberal bloc on this court doesn't necessarily put Souter at the same point on the national political spectrum. Without identifying where the other Justices fir on the national spectrum, drawing conclusions from any one Justice being to the left or right of the others seems questionable. Compare Byron White, who I assume was a Democrat, and was frequently (usually?) on the conservative side of the very liberal Warren Court.

The correlation between Souter's voting record and Ginsberg's is I think more revealing. But again I suspect even Ginsberg would have been a moderate on the Warren Court.

I agree it's unlikely Souter considers himself a Republican, but I don't think it's at all unlikely he considered himself one when Bush Sr. nominated him.
5.4.2009 5:38am
Leo Marvin (mail):
fir => fit
5.4.2009 5:41am
dearieme:
I've read that after Souter returned from his Rhodes Scholarship he never again left the USA. If he escaped criticism for such remarkable parochialism that would prove that he was no Republican.
5.4.2009 7:14am
Confused (mail):
There seems to be consensus that the Republican party has moved to the right. See, e.g., Allan and Volokh Groupie in earlier comments. What evidence is there for this proposition? Reagan was unquestionably the most conservative of the last three Republican presidents in terms of ideology and policy. Congressional Republicans --- specifically Senators --- have moved to left by supporting an unprecedented expansion of government initiated by the Bush Administration. Finally, Specter's deflection is nothing new. He was at odds with the Reagan Administration during the 1980s, even opposing the nomination of Judge Bork.
5.4.2009 8:12am
Dan28 (mail):
Well, right. Yankee Republicans have become Democrats, that's the point. My mother's family was all old money Connecticut Republicans. They were liberal on racial issues (which they saw as an aspect of their Republican identity, not a contradiction to it - opposed to the racists of the Democratic party), broadly supportive of the New Deal and the Vietnam war, business-oriented and focused on economic growth, Episcopalian and not in any way connected to evangelical born-again culture, and supportive of women's rights. They were the quintessential Rockefeller Republicans, and they were perfectly represented by the politics of their Senator Prescott Bush, who supported the Peace Corps, the civil rights acts, birth control, major public works projects like the Eisenhower highway system, and so on. All the children of my mother's family are now, like Souter, loyal democrats.

Souter comes from a part of the Republican party that does not exist anymore. It was destroyed by Buckley and movement conservatives who saw Rockefeller and John Lindsay as the enemy, not as a marginal ally, and the New Deal tradition as descent into socialism, rather than an accepted political reality.
5.4.2009 8:44am
krs:
My guess is that people are just really intrigued by the idea of him dropping his job as a to go back to his barn in the north woods.
5.4.2009 9:02am
rosetta's stones:
Bush I was anxious to avoid another Bork fight, with some arrogant, chin-whiskered, intellectual feaster being forced to read back his voluminous writings... forced by a bunch of unwashed politicians not worthy of beholding his grandeurous presence. So, he went with Souter, and I still remember that sly smile at the corners of his mouth as he spoke to the congresscritters, sorta like "Of course, I can't specifically comment on cases, but in general..."
.
.
.

I'd say that over the last 30-40 years or so, the Democrats have historically demanded fealty to the most extreme leftist positions. That may be starting to change, we'll see.

After the 2000 census, Michigan lost a couple congressional seats, and the Republicans controlled state government, so they pitted sitting Demos against each other, as per usual practice. One of these matchups was to be David Bonior v. Sander Levin... both liberal... not much daylight between them politically.

But Bonior was a far sharper political operative, by a large margin, and Levin is not even a patch to his brother Carl. Sander is basically a worthless stooge, while Bonior was extremely effective to his cause. However, Bonior is pro-life, and this apostasy on just the one issue caused the dogmatists to force him to withdraw. Here, they chose ideology over function, for sure. I think this is why you saw "Bush" gains in 2002 and 2004, not because anybody liked him/them, but because their opponents were weakening themselves and running poor candidates.

In 2006, you have to give Schumer credit, because he put a stop to many of these stupid practices, and drew from a more divergent candidate base. But, this hasn't been their historical practice, it's only a recent (2 elections) development.

But if you accept Blue Dogs into the fold, you accept Blue Dog politics, which will tend to temper the extreme Left, as we're seeing.
5.4.2009 9:13am
Uh_Clem (mail):
I'd say that over the last 30-40 years or so, the Democrats have historically demanded fealty to the most extreme leftist positions.

Well, as a supporter of free speech, I'll defend your right to say that. Even if it is barking nonsense that is completely disconnected to reality.

Two words: "Clinton" "Triangulation" . You do remember the 90's, don't you?

Or to give a more direct counterexample to your Bonier-Levin example, there was John Dingle v Lynn Rivers, two Democratic representatives who's districts were similarly combined by redistricting the same year. Rivers is a down-the-line University town liberal who among other things favored gun control while Dingle was endorsed by the NRA (cf "apostacy" above).

Guess who won? Hint: he's still in congress today.
5.4.2009 9:37am
Angus:
I'd say that over the last 30-40 years or so, the Democrats have historically demanded fealty to the most extreme leftist positions. That may be starting to change, we'll see.
For starters, their Senate majority leader is pro-life, pro-gun, pro-death penalty, anti-gay marriage.
5.4.2009 9:46am
rosetta's stones:
Rivers was my representative. She was an Ann Arbor... how can I say this nicely... kook... and her apostasy was anti-auto... a no-no in Michigan. Dingell repped the auto industry and the UAW for many years, so your example doesn't quite say what you think it says. The only thing that ever trumps strident political ideology is jobs and money, and the UAW and the auto industry tugged on the black leather gloves, screwed on the silencer, and executed that poor sap.

Clinton was the exception proving the rule, and likely an early precursor to what Schumer was speaking of in the runup to the '06 election. You do remember the wailing when he signed that welfare reform bill don't you? And you remember who was doing the wailing, don't you?

The Left may be evolving from their historical stridency, but it's too early to say.
5.4.2009 9:49am
Bill Harshaw (mail) (www):
I think there's been much shifting and realignment. As the flip side of Dan28, my WASP uncle was bitterly disdainful of Mayor James Curley and the Dem machine of Boston which represented the Catholic immigrant population. I suspect he reluctantly voted for Senator Brooke, the first modern black Senator, who was a Republican. (And don't forget Gov. Weld.) But Boston's school integration troubles were a big step on the way to Reagan Democrats. And I suspect feminism has been a big step on the way to converting "moderate Republicans" to Democrats.
5.4.2009 9:53am
rosetta's stones:
The Bonior case was more pure, because he and Levin's beliefs were in alignment, all the way down the line, except for one. And that one belief cost him his job, even though a stooge took that job. The auto industry and UAW coalition hadn't the need to get involved, as with Rivers.
5.4.2009 9:55am
Desiderius:
Dan28,

"Souter comes from a part of the Republican party that does not exist anymore. It was destroyed by Buckley and movement conservatives who saw Rockefeller and John Lindsay as the enemy, not as a marginal ally, and the New Deal tradition as descent into socialism, rather than an accepted political reality."

Maybe. My guess is that the old usual suspects upon which Yankees with a certain self-regard used to look down their noses became unfashionable, so they chose the old standby, Southerners, undifferentiated, thereby not noticing that it was the Southern liberals (the New South, too busy to hate crowd) who had become Republican, while the old haters there remain steadfastly Democrat, unwilling to relinquish their age-old resentments. Now the country-club Yankees have joined them.

There are many things to be said about such a coalition, but "progressive" isn't one of them.
5.4.2009 9:56am
themighthypuck (mail):
If liberal these days is code for left, who on the court is liberal? I think the court is pretty conservative all around. This isn't a bad thing. Courts probably should be conservative. Also, as has been pointed out in this thread, liberal and conservative are not necessarily good rubrics under which to slot Justices. Is deference to the legislature a conservative position? For most people, it all depends on what the legislature wants to do.
5.4.2009 9:58am
U.Va. Grad:
I don't think "Yankee Republican" and "reliable liberal vote" are mutually exclusive, especially if "Yankee Republican" means something roughly like "Rockefeller Republican." (And, on that score, Souter is more conservative than some Rockefeller Republicans were. E.g., compare his views on abortion to Constance Cook's.)

Being a Republican and being a conservative are by no means the same thing, and I wouldn't be surprised to learn that Souter still thinks of himself as a Republican. (I have no idea if he does. I'm just saying that it wouldn't surprise me. I've often heard that Stevens still considers himself a Republican, so perhaps Souter is similar.)
5.4.2009 10:20am
Crackmonkeyjr (www):
Re McCain:

I never believed that McCain was a moderate Republican. What he was was a Republican who had no, or limited allegiance to Bush and his allies.

Like any other politician, McCan does not agree with his party 100%. Most members of Congress, however, tend to play down their differences with their parties for a variety of reasons from party loyalty to need for party support in elections, committee appointments, or getting a few important issues on the party agenda.

After the 2000 election, it appeared that McCain had a falling out with Bush and the GOP leadership and decided, for whatever reason, that he was no longer interested in cooperating. This could have been a political calculation, that they weren't going to do him any favors any way, it could have been out of spite for tactics used during the primary, or it could be for some reason unknown to me. As a result, when he disagreed with the party line, McCain was not easily pulled into place and often went out on his own, even when his own plan was not significantly different than Bush's (see e.g., the Bush tax cuts).

Of course the media loved him for this, "Republican Senator Comes Out Against Republican President's Initiative" is essentially a "man bites dog story," and arguably many members of the media didn't quite mind making Bush look bad. I tend to think that this reinforced McCain's "mavrickness" because he realized that, by opposing Bush, he would get media coverage, and so opposed Bush more often to get more media coverage (and later to distinguish himself from an unpopular president). Many Democrats saw this and assumed that it was because he was moderate, not because he was not, at the time, a party loyalist, despite still sharing a majority of his views with the GOP.

When it came time to run for election, he became the GOP leadership. As a result, it was no longer possible to benefit from playing his small differences with the party leadership, now himself. Also, like any other candidate, he shifted his public views somewhat to fit what he believed would get him elected, in this case towards the conservative end of the spectrum. It probably didn't help that the media had moved on to a new darling, Obama, leaving his media image as just another Republican.
5.4.2009 10:22am
Thales (mail) (www):
All of this is interesting as intraparty political demographics. But it is certainly true to any objective and historical observer that every member of the Supreme Court, Ginsburg, Souter and Breyer included, is significantly further right in most areas than Brennan, Marshall, Douglas and Warren. Ginsburg, long thought to be a staunch activist for the women's rights agenda (whatever that is), even expresses doubt about the reach and wisdom of the original Roe decision. Hardly the sort of freewheeling liberal activism of GOP caricature. I don't think we can expect another Brennan from Obama, at least in terms of ideology--perhaps in terms of charisma and persuasiveness.
5.4.2009 10:35am
Jon Roland (mail) (www):
One case in which he wrote the majority opinion that indicates his republican-conservative leanings (or perhaps his background as a prosecutor) is Atwater v. Lago Vista, 532 U.S. 318 (2001), in which he voted to allow police almost unlimited discretion to make arrests, even for alleged offenses which are not jailable. (I regard O'Connor's dissent to be more persuasive.) It was, essentially, a prudential decision rather than a constitutional due process or Fourth Amendment decision, although labeled as such. But it reflects a lack of sensitivity to the ways police can be abusive, or how the decision would enable and encourage abuse.

The decision has not been discussed as much as I would have expected, but it deserves more attention. My contacts with law enforcement indicate they are often taking it as license to fulfill the old cop saying, "You might beat the rap but you won't beat the ride," and to use arrests to harass people they don't like, especially political dissenters or critics of police abuse or local judges. They have discovered they can arrest the same person repeatedly as a way to oppress him, knowing he will be released without charge in a few days, but at great expense and loss of earnings. I have gotten reports of this happening with increasing frequency, often used to keep targets in jail more days than they are free, until they are driven to move away to escape the targeting.

I would be interested in what Souter would say about his opinion in that case if he had a change to review cases of what police have done with it.
5.4.2009 10:43am
Dan28 (mail):

Maybe. My guess is that the old usual suspects upon which Yankees with a certain self-regard used to look down their noses became unfashionable, so they chose the old standby, Southerners, undifferentiated, thereby not noticing that it was the Southern liberals (the New South, too busy to hate crowd) who had become Republican, while the old haters there remain steadfastly Democrat, unwilling to relinquish their age-old resentments. Now the country-club Yankees have joined them.

There are many things to be said about such a coalition, but "progressive" isn't one of them.

Right. What I hear you saying in this post is that there's a connection between the politics of, say, Democrat William Jennings Bryan in 1896 railing against the Northern elite (Republican) bankers and businessmen for their arrogance and condescention towards working class whites, and a modern Republican like Limbaugh, mocking the effete intellectual brahmins for basically the same thing. The great reversal of politics in the American south is that whereas for Bryan, the condescention of the elites was primarily understood as an economic issue, starting in the 1960s the Republican party learned to channel that sense of cultural resentment and use it to pursue an economic agenda that was the exact opposite of Bryan's. Souter is part of the generation of Republicans that got caught in between, a clear brahmin elite who saw the Republican party as the party of responsible government, not part of a aggressive conservative agenda. He came of age politically in the early 1960s, his influences and supporters were men like Warren Rudman, a Republican governor of New Hampshire who has essentially become a Democrat and was talked about as a possible Kerry running mate.

All of those people are now liberals. Snowe and Collins hang on - for now - because of the power of the incumbancy and a certain nostaglia for that old kind of politics. But for those impacts, Republicans would be completely washed out of New England. So it's not surprising that Souter's path has been exactly the same as the rest of Republican New England.
5.4.2009 10:51am
Blue:
Past generations of Rockefeller Republicans would magically be members of today's Democratic party because the Republicans have moved so far right? Really?

You think the solid Eastern Republicans of the 1960s would have identified with a MoveOn dominated foreign policy that places the blame for every one of the world's ills at the feet of the United States? Would have stood, for one minute, with the hemming and hawing of the Democrats over the prosecution of the war against the terrorists post-9/11? Would have given a rats ass over the waterboarding of KSM? Would be willing to sacrifice American industry for the epherma of "climate change"? Would have stood for a single rock-ribbed minute for the stimulus package passed by the Democrats?

Today's social class that once formed the basis of the Rockefeller Republican party has fundamentally changed; they are not their parents. They were raised in a media and education bubble that was completely infiltrated--in classic Gramscian fashion--by the ideals of the far left. The corrosive effect of decades of NY Times editorials and other establishment vehicles taken over by the left has wrecked havoc on the beliefs and values of these people. So much so that they are now completely unable to understand that they are supporting candidates whose policies are directly against their economic interests. Their paychecks will be smaller, their health care worse, their children less likely to matriculate at elite schools, their businesses less likely to recieve government contracts.

What's the matter with Kansas? Absurd. What's the matter with Westchester County, that's the real question.
5.4.2009 11:06am
John Doe (mail):
But it is certainly true to any objective and historical observer that every member of the Supreme Court, Ginsburg, Souter and Breyer included, is significantly further right in most areas than Brennan, Marshall, Douglas and Warren. Ginsburg, long thought to be a staunch activist for the women's rights agenda (whatever that is), even expresses doubt about the reach and wisdom of the original Roe decision.

You don't know what you're talking about. Ginsburg has never expressed doubt about Roe in any Supreme Court opinion (while a law professor, she merely said that maybe the Court should have taken a more gradual approach). Ginsburg has indeed been a staunch vote for abortion rights, gay rights, employment discrimination law, forbidding single-sex schools, etc. The ONLY way in which she (or the other Supreme Court liberals) wouldn't match Brennan/Marshall is that they're not quite as gung-ho about using the 4th Amendment in all cases to throw out evidence, nor is it quite as obvious that they will vote to make the death penalty unconstitutional (although the current liberals do vote for every restriction on the death penalty that comes up).

Otherwise, Ginsburg/Souter/Stevens have just been preserving the liberal decisions of the Warren Court. That doesn't make them "significantly further right in most areas" in any way whatsoever.
5.4.2009 11:16am
Dan28 (mail):

Past generations of Rockefeller Republicans would magically be members of today's Democratic party because the Republicans have moved so far right? Really?

Yes. Don't take my word for it, ask Warren Rudman or Lincoln Chaffee or John Lindsay or Edward Brooke. Or for that matter David Souter! This isn't ancient history here, most of these people are still alive, and most of them are voting for Democrats.

You think the solid Eastern Republicans of the 1960s would have identified with a MoveOn dominated foreign policy that places the blame for every one of the world's ills at the feet of the United States?

No, but that's not a fair characterization of Democratic foreign policy (or move on, for that matter).
Would have stood, for one minute, with the hemming and hawing of the Democrats over the prosecution of the war against the terrorists post-9/11? Would have given a rats ass over the waterboarding of KSM?

Would have stood for the rule of law and in defense of the Convention Against Torture, signed by Ronald Reagan, and the Geneva Conventions? Absolutely.
Would be willing to sacrifice American industry for the epherma of "climate change"?

Again, the party of TR would absolutely have stood for real science and a truly conservative, risk-adverse, protective approach to changes in the environment. Absolutely.
Would have stood for a single rock-ribbed minute for the stimulus package passed by the Democrats?

Again, as the defining characteristic of Rockefeller Republican was their acceptance of the New Deal, as opposed the Goldwater resistance to it, it is absolutely the case that a Rockefeller Republican would logically support Keynesian eonomics.

Your post is ironically a perfect reflection of how far to the right the Republican party has moved.
5.4.2009 11:19am
Allan (mail):
IMHO, everyone on the Supreme Court is right of center. There are just some who are more right of center than others. In a historical context, Obama is in the center.

That is, politicians like McConnel and Boehner are on the reactionary right. And they are in the mainstream of the Republican party. Tom Hayden and Dennis Kucinich are on the hard left, but they are on the fringe of the Democrat party.

William Buckley was always to the far right. That Republicans identify with him says alot about the party.

Karl Marx was/is the far left. There are not many Democrats who would cite his theories as the best theories of government.

So, yes, Souter is conservative. Roe v. Wade is, essentially, a centrist position (although arguably a bad decision on federalism grounds).
5.4.2009 11:25am
theobromophile (www):
Mentioning actual cases here: Souter has come out against the death penalty for child rapists (Kennedy v. Louisiana), but for a constitutional right to kill an infant when it is halfway out of the womb (Carhart I and Carhart II). His vote in Heller indicated that he thought that DC's complete ban on guns met constitutional muster.

But conservative political thought, and with it, the Republican party, has moved away from him?
5.4.2009 11:26am
Blue:

Yes. Don't take my word for it, ask Warren Rudman or Lincoln Chaffee or John Lindsay or Edward Brooke. Or for that matter David Souter! This isn't ancient history here, most of these people are still alive, and most of them are voting for Democrats.



And most of them have also drunk deeply of the far-left media establishment since the 1960s and 1970s. They've "evolved" as well.l
5.4.2009 11:28am
Dan28 (mail):

And most of them have also drunk deeply of the far-left media establishment since the 1960s and 1970s. They've "evolved" as well

That's right, everyone who disagrees with you has been brainwashed by the elite. Even if they clearly have the same position on, say, Keynesian economics that they had in 1964.

The Catholic and the Communist are alike in assuming that an opponent cannot be both honest and intelligent.
5.4.2009 11:34am
rosetta's stones:
I wouldn't speculate that Warren Rudman would support the level of profligate spending we've been on... that wasn't his game... quite the opposite.
5.4.2009 11:37am
David in NY (mail):
My Dad was a Yankee Republican, and if he were still around, he'd probably be pretty close to Ginsburg in approach, I think. The Republicans have gone bonkers, so the reasonable ones among them naturally look like Democrats.
5.4.2009 12:28pm
levisbaby:

Some people say that Justice Souter is a Yankee Republican, and that he seems like a liberal only because the GOP has shifted so far to the right

This post mixes two things 1) Whether Souter is a "Yankee Republican" and 2) whether the GOP has shifted so far to the right.
5.4.2009 12:47pm
Gary McGath (www):
In New Hampshire, where I lived, Souter is best known as one of the justices who upheld theft by eminent domain. There was a movement for a while to try to get the state to take his home as an act of poetic justice.
5.4.2009 12:55pm
DangerMouse:
I understand that there are people here who think that they are P.R. hacks who have to spin things, and so they write nonsense about how just because Souter was a reliable liberal vote doesn't mean he's actually liberal.

But it takes the cake to say this: Roe v. Wade is, essentially, a centrist position (although arguably a bad decision on federalism grounds).

Has there EVER been a Supreme Court decision more hated and more controversial than Roe (and not only because of its shoddy reasoning, but because of its actual effect)? I only think Dred Scott comes close. Only the most deluded would think that it's a centrist position.

But, as I said, people seem to think that they're engaged in P.R. here, spinning the agenda, setting a "frame" for the debate, moving the goalposts, whatever. You guys overestimate your importance.
5.4.2009 12:59pm
Allan (mail):

Has there EVER been a Supreme Court decision more hated and more controversial than Roe (and not only because of its shoddy reasoning, but because of its actual effect)? I only think Dred Scott comes close. Only the most deluded would think that it's a centrist position.


Just because Roe v. Wade is hated, does not make it a left/right position.

On the issue of abortion, the end result of Roe was centrist. I would posit that, were Roe not there, the law in most the states would allow for abortion. The way the justices got there was anti-federalist.

There are many pro-choice people (such as, me) out there who do not like the way Roe was written.

Given that it is still good law, I would not say that it is so hated.

As for other hated cases: Brown v. Board, Katzenbach, Miranda, Gideon, Lochner, Marbury, Plessy, the Indian case in the 1820s (that Jackson ignored), some of the New Deal decisions, Wickard... The list goes on.
5.4.2009 1:18pm
ohwilleke:
I think that there is good reason to believe that Justice Souter was hired by a Republican President largely on the strength of an incident while Souter was AG in which he pulled out all stops to prosecute a large number of protestors who participated in a demonstration, despite the fact that they threatened to overwhelm the judicial system.

This was read as a law and order, tough on crime commitment. His clean and bare papertrail also make his confirmation easier.
5.4.2009 1:21pm
DangerMouse:
Given that it is still good law, I would not say that it is so hated.

As for other hated cases: Brown v. Board, Katzenbach, Miranda, Gideon, Lochner, Marbury, Plessy, the Indian case in the 1820s (that Jackson ignored), some of the New Deal decisions, Wickard... The list goes on.


I'm sorry, but that is an incredibly short sighted and deluded worldview. The fact that it's "good law" doesn't mean squat. There is only one case in America that has millions of people marching on Washington to the foot of the Supreme Court building every year: the March for Life, on the anniversary of Roe v. Wade. Nobody in the country has been protesting Wickard for decades. Nobody is protesting any other case in the country. And apart from Dred Scott, no other case in the country has been as more divisive or controversial, or more strongly rejected by large majorities of the non-lawyer populace.

Get out of your hole. If you can name one case that has attracted the attention that Roe v. Wade has, consistent with the yearly opposition as seen in the March For Life, then maybe I'll consider it.
5.4.2009 1:27pm
Middle Name Ralph:

But conservative political thought, and with it, the Republican party, has moved away from him?


You are making the fundamental mistake of assuming that Yankee Republican = modern conservative. They don't. The Republican Party has moved to the right and toward conservatism. As it has done so, it has moved away from Yankee Republicans. That's why they're all Democrats now.
5.4.2009 1:32pm
zippypinhead:
Don't forget, once upon a time Lowell Weicker was a "Rockefeller Republican" too. What is it with these Yankees (or more accurately, Red Sox fans)?

My grandfather once held elective office as a Democrat (because during FDR's reign that was pretty much a prerequisite for any sort of public service in his area of the country), but by the 1950s he was calling himself an "Eisenhower Republican." Which is a phrase I haven't heard in many years, and frankly I never figured out what it meant - perhaps internationalism and strong defense, economic conservatism (e.g., the "nine businessmen and a plumber" cabinet), and social issues moderation (including support for civil rights)? Regardless, I think the concept, whatever it was, probably died with Goldwater's nomination, or at the latest sometime before Nixon's resignation?
5.4.2009 1:38pm
Allan (mail):
Dangermouse,

We have millions who hate the result of Roe v. Wade and millions who like the result of Roe v. Wade. The best that can be said (from the anti-Roe crowd) is that the country is split 50/50 on abortion policy. How more centrist can you get?

Roe is not opposed by a "majority". It is questionable whether a a large percentage of the country would vote to make abortions illegal in the first trimester, even were Roe not on the books. The political landscape is a little askew, as pro-choicers have no incentive to march, they have the law.

As for hate, you did not ask for the currently most hated decision, just the most hated decision. There were riots as a result of Brown. I have yet to see an anti-Roe riot.
5.4.2009 1:40pm
wolfefan (mail):
If one follows the link to the Rosen piece on Sotomayor, you'll find a link to an article on how Souter has the most conservative judicial philosophy on the SC, as opposed to the activists of the left and the right.
5.4.2009 1:58pm
tvk:
Dangermouse, Roe is not hated by a "majority." It is hated by a passionate and vocal minority. And in that regard, is has nothing on Brown v. Board of Education, which was subject to not only protests but outright defiance that required federal troops, in case you forget.
5.4.2009 2:00pm
DangerMouse:
The proportion saying that abortion should be legal in all or most cases has declined to 46% from 54% last August.

Currently, a minorty of the population supports abortion. A majority oppose it. This goes up and down. But it is inaccurate to say that a small minorty opposes abortion.

The best that can be said (from the anti-Roe crowd) is that the country is split 50/50 on abortion policy. How more centrist can you get?

Centrist means "middle of the road policy." If 50% of the populace opposes abortion policy, and 50% support it, that says nothing about whether the policy itself is extreme or not, as the 50% supporting the policy could be extreme themselves. In fact, the half-split strongly suggests that the current policy is not "centrist," because it draws support from neither side.

Anyway, all you're doing is more "framing." Nobody is going to believe you on it.
5.4.2009 2:15pm
Allan (mail):
Dangermouse,

Huh? If 1/2 support a policy, then, by definition it is not extreme.

As for abortion, if you ask the question properly, only a small portion of society opposes abortion. That is, those who would oppose abortion even in the case of rape or incest, and even if not having an abortion would kill the mother.

There is no-one out there who is pro-abortion (well, maybe there are a few). That is, people who would have all pregnant women, no matter the circumstances, have an abortion.

Everyone else is pro-choice, with the only question being where to draw the line. I would guess that:

95% are for allowing abortion if it would save the life of the mother.
90% are for allowing abortions in the case of rape or incest.
65% are for allowing abortion in the first trimester.
40% are for allowing abortion at the discretion of the mother with no restrictions.

Even Sarah Palin is pro-choice. She has said that her daughter made the right choice in having her baby, and that she made the right choice in not aborting her sure-to-be disabled child.

The key is that it is the choice of the mother.
5.4.2009 2:23pm
DangerMouse:
Huh? If 1/2 support a policy, then, by definition it is not extreme.

5 people want to murder you, 5 others want you to live. I guess the "pro-murder" policy isn't extreme.

There is no-one out there who is pro-abortion (well, maybe there are a few).

There are plenty of people who are pro-abortion:


We need to create a world where a woman having an abortion is as respected and supported as a woman having a baby. As the movement for abortion pride and the recognition of women's human rights progresses, we will continue to speak out with our voices, our experiences, our bodies - and our lives. YES - ABORTION PRIDE!



These are the two things I want you, please, to remember -- abortion is a blessing and our work is not done. Let me hear you say it: abortion is a blessing and our work is not done. Abortion is a blessing and our work is not done. Abortion is a blessing and our work is not done.


As for the rest of your post..

Everyone else is pro-choice, with the only question being where to draw the line. I would guess that:

I post a link to an actual, current poll on this matter, and you're guessing? I guess facts don't matter in the way of your spin, with thie stupid attempt to claim that everyone is pro-abortion unless they favor 100% restriction on abortion. God, you must think we're all idiots.

Even Sarah Palin is pro-choice....


Yup, you're engaged in spin. This is ludicrous. Good luck selling that line to your fellow libs. Hey libs: there was no reason to oppose Palin so strongly, because Allan says she's pro-choice! Who would've thought? Thanks Allan!
5.4.2009 2:33pm
James Kabala (mail):
The truth is that the political spectrum has shifted in many different ways at once.

On social and moral issues it has shifted far to the left. I can't really imagine Calvin Coolidge or Robert Taft as backers of abortion rights or gay marriage. (It is true that from the 1920s onward Yankee Republicanism often had a pro-contraceptive tinge to it, but the leading backers were those - like Nelson Rockefeller - who were not regarded as very conservative even at the time.)

On race things have shifted so much that the once common openly segregationist politician is now an extinct species. However, the GOP has probably shifted slightly to the right in that while 1960s and 1970s Republicans (even, or indeed especially, Nixon) were generally supportive of affirmative action, this is no longer the case.

On economics there was for some time a decided shift to the right. Eisenhower, Nixon, and even Goldwater accepted rates in the top income tax bracket that Barack Obama would never dare to suggest today. But heedless of national trends, some states shifted to the left - Bernie Sanders could never have gotten elected in one of the two states that voted for Alf Landon. And now, with bailouts, possible bank nationalizations, etc., we are possibly seeing a big shift back to the left.

On foreign policy there has been a shift that many today would call ultra-conservative but that the Old Right would not have. Torture/enhanced interrogation, preemptive war, presidential powers, etc.

Finally, while many Yankee Republicans were admirably in the forefront of full rights for blacks, they were certainly not a group immune from prejudice. Many quite liberal Yankees stayed Republican to keep away from the party of Catholics and white Southerners, and when the former became a swing group and the latter outright Republican, the Yankees moved away.

So in short, what party would a hypothetical Souter of bygone years supported, and what have would been the reasoning behind his choice? We can't say, because there are too many variables.
5.4.2009 2:37pm
DCP:

Political alignments are always shifting and evolving on ideological and policy grounds. This has been going on forever. And politicians on the margins of these shifts are sometimes squeezed out.

Let's not forget that six months ago Joe Lieberman, recently on the Democratic Presidential ticket, was speaking at the Republican convention bemoaning his party over a perceived loss of identity, priorities, etc (coupled with his own desire for survival against left-wing challenges from within). Add this to the laundry list of southern populist, western libertarians and others who have either switched to the Republican Party, retired, maintained a disgruntled stance or gone rabid dog crazy over the fact (Zell Miller).

Anyway, just politics as usual.

Somebody please wake me when this basket of laundry has finished the spin cycle and it's time to put a new load in.
5.4.2009 2:40pm
Crackmonkeyjr (www):
Dangermouse: You are confusing whether a position is "extreme" with whether it is "wrong." If a group is essentially split 50/50 on an issue, the issue does a very pour job of deciding whether those who agree with the position are at the extreme ends of the national debate.

With abortion, there are extreme positions, e.g., everyone should get an abortion, abortions should be legal without any restrictions, abortions should be banned even when they are necessary to save the life of the mother, abortion doctors should be killed, etc. The idea that abortions should be essentially unrestricted during the first trimester, with increasing restrictions as time goes on, is pretty much the middle of the road on the abortion debate, and also the position espoused by Roe v. Wade.

Now being "centrists" does not mean that a position is correct. The centrist position about slavery in 1850 was that the slaves should be freed, but not treated equally, whereas equal rights for all former slaves was an extremest position. Today, most would agree that the extremist answer was the right answer with regards to slavery.
5.4.2009 2:43pm
Crackmonkeyjr (www):
"poor" not "pour"
5.4.2009 2:46pm
Allan (mail):
Dangermouse,

The articles you cited are pro-choice. They are for destigmatizing abortions. They are not advocating abortions for everyone. Consequently, they are not pro-abortion (as the only choice available).

Your polls support me.

16% say abortion should be illegal in all cases.

Everyone else is pro-choice and the only question is where to draw the line.

In your opinion, is someone who thinks abortion in the 3rd trimester, but not before, pro-choice or anti-abortion? In my book, that person is pro-choice.
In your opinion, is someone who thinks abortion should be allowed in the first trimester, but not thereafter, pro-choice or anti-abortion? In my book, that person is pro-choice.
In your opinion, is someone who thinks abortion should be allowed only in the case of rape or incest pro-choice or anti-abortion? In my book, that person is pro-choice.
In your opinion, is someone who thinks that abortion should be an option if the choice is abortion or death to the mother pro-choice or anti-abortion? In my opinion, that person is pro-choice.
In your opinion, if someone thinks abortion should never be allowed, is the person pro-choice or anti-abortion? In my book, that person is anti-abortion. And that is about 16% of the population.

I suppose that there are people who are for abortion in all cases, but I have never heard of one. When you find one, please let me know.
5.4.2009 2:53pm
DangerMouse:
If a group is essentially split 50/50 on an issue, the issue does a very pour job of deciding whether those who agree with the position are at the extreme ends of the national debate.

That's my point. I'm not the one saying that a 50/50 split means that the split means the dispute reflects a "centrist" policy. Take it up with Allan.

The idea that abortions should be essentially unrestricted during the first trimester, with increasing restrictions as time goes on, is pretty much the middle of the road on the abortion debate, and also the position espoused by Roe v. Wade.

A common fallacy. Roe v. Wade should be read with Doe v. Bolton, which gutted the trimester proposition and opened the door to 9th month abortions because of "mental health" reasons. There are no temporal restrictions on abortion at all in America.
5.4.2009 2:54pm
Allan (mail):
Ok Dangermouse. If a 50/50 split does not determine the center of the debate, what does?

That is, where would you say the "center" is on the abortion issue? And, if you would like, please explain. Perhaps I can be persuaded.
5.4.2009 3:07pm
Crackmonkeyjr (www):
That's my point. I'm not the one saying that a 50/50 split means that the split means the dispute reflects a "centrist" policy. Take it up with Allan.
What I was saying is that where a position splits the country 50/50, it is not an extremist position.

A common fallacy. Roe v. Wade should be read with Doe v. Bolton, which gutted the trimester proposition and opened the door to 9th month abortions because of "mental health" reasons. There are no temporal restrictions on abortion at all in America.
Doe v. Bolton did limit the types of restrictions that can be put, even on 3rd trimester abortions, but the restrictions are still there. That those restrictions have been loosely enforced does not mean that they are not applicable.
5.4.2009 3:12pm
DangerMouse:
Your polls support me.

16% say abortion should be illegal in all cases.

Everyone else is pro-choice and the only question is where to draw the line.


More "framing," or spin as they call it. Look, Allan, it is fundamentally dishonest of you to claim that only 16% of the population is pro-life, and the rest are pro-choice. That is just not the way those terms are used in everyday discourse, which is why I objected to your post in the beginning. You're a spin artist. NOBODY is going to believe or agree with you that only 16% of the country is pro-life. It's just not in the cards, notwithstanding your deluded allegiance to your self-invented definitions.

The absurdity of your position is demonstrated by your pathetic attempt to claim Sarah Palin as pro-choice. Funny, that's not what NARAL thought when they attacked her, and they're the most pro-abortion people in the planet. In fact, they called her "anti-choice." Yup.

Any other libs here want to take up Allan's point that Sarah Palin is pro-choice? I didn't think so. It doesn't pass the laugh test.
5.4.2009 3:13pm
DangerMouse:
Perhaps I can be persuaded.

In case it's not clear, I think you're a spin artist hack. No, I don't think you can be persuaded.
5.4.2009 3:14pm
Dan28 (mail):

There are no temporal restrictions on abortion at all in America.

In part because Republicans have been unwililng to negotiate with the dozen or so Democrats who would be willing to sign on to a ban on third trimester abortions if it contained an exception for the health of the mother. Rather than agree to a compromise, the GOP evidently prefers to have no ban on partial birth abortion at all.
5.4.2009 3:15pm
DangerMouse:
That those restrictions have been loosely enforced does not mean that they are not applicable.

Crack,

Are you aware of any law restricting the temporal ability to get an abortion? That is, any law saying than an abortion after X date is illegal? I'm not aware of any.
5.4.2009 3:15pm
Crackmonkeyjr (www):
DangerMouse: No, there is no law that says that abortion after X date is illegal, but there likely are (and certainly could be) laws that limit the circumstances of abortions after the first trimester.
5.4.2009 3:20pm
Allan (mail):
Dangermouse,

I am not a spin artist. I am pro-choice. There are no pro-abortion people that I know of. There are some anti-abortion people.

The great majority of people support abortions in some cases. If they cannot be viewed as pro-choice, I don't know who can be.

NARAL does not speak for me. They should embrace Governor Palin's pro-choice position and engage in a debate on where to draw the line.

I can be persuaded that the line be drawn at one place or another. A ban on abortions in the third trimester, except for the health of the mother seems reasonable to me, for example. A ban on abortions altogether seems unreasonable to me. I would support somewhere in the middle, but the anti-abortion folks won't do it.

So, we are left with no abortion restrictions. To me, that is better than being left with no choice at all.
5.4.2009 3:24pm
Allan (mail):
I think Dangermouse has conceded. Ad hominem attacks are all he has left in his arsenal.
5.4.2009 3:25pm
DangerMouse:
Allan,

I don't think it makes any sense to try to debate with someone who is delusional enough to claim that Sarah Palin is pro-choice. Frankly, I think you're the only person on the planet who this that to be true.

I can't talk to you because you're not speaking the same language.
5.4.2009 4:02pm
Allan (mail):
Dangermouse,

There are others with the same view (just a sampling of links):







5.4.2009 4:12pm
Allan (mail):
Well, I can't figure out how to do links, I guess.

Here you go:

Link 1

Link 2
5.4.2009 4:18pm
DangerMouse:
Bwahahaha...

Allan, I said you were a spin-doctor, and now you have proven it. Regarding Palin's speech at the pro-life fundraiser, it was unambiguously pro-life. The libs tried to spin it as pro-choice because she talked about the temptations inherent in the human condition. The conclusion in her address, however, was to promote a culture of life and reject such temptations. That the libs would spin that as pro-choice shows how far they have fallen.

More commentary on that spin here, for those who are interested.
5.4.2009 4:54pm
Allan (mail):
Dangermouse,

Were we living in a state based upon the precepts of one religion, and it happened to be yours, abortion would be illegal, because, by definition, it would be immoral.

I reject the premise that abortion is immoral for all. Morality in a diverse society is a moving target. We do have some morals that transcend all beliefs, such as murder of a person who has been born is wrong and theft is wrong. Abortion is not one of those.

If you can succeed in persuading the vast majority of people in the US that abortion is morally wrong, making abortion illegal will follow. But, of course, if 100% of the people thought abortion was morally wrong, there would be no need for the law, as everyone would choose to have their baby.

Laws are in place so that society can function. Making some actions criminal, i.e., murder and theft, helps the society function better. Making abortion illegal does not help the society function better. Heck, I am not sure that making marijuana illegal makes society function better. Theoretically, making abortion illegal would do the opposite.

I commend the fight to have fewer abortions. I just don't think that it need be criminalized. Instead, the pro-life movement could work with the pro-choice movement to lessen the incidence of abortion. They can do that by funding (overfunding) alternatives, such as adoption and foster care, and health care for all pregnant women. In addition, there should be more assistance for families with children. Maybe that is a bit socialist. But if a bit of socialism would result in significantly less abortions, would it not be worth it? Maybe not. I don't know.

What I do know is that abortion is not a black or white issue and there is no easy answer.
5.4.2009 5:25pm
Milhouse (www):
Calling Palin pro-choice is deliberately dishonest. She is pro-choice on abortion just as William Lloyd Garrison was pro-choice on slavery. Garrison could have bought slaves, but chose not to. And Palin could have killed her son and gotten away with it, but chose not to. That doesn't mean she thinks she should have had the choice. And she's on record as supporting a constitutional amendment to take the choice away.
5.4.2009 5:48pm
Michelle Dulak Thomson (mail):
Allan,

It seems to me that the right metric, if we're talking about abortion, is what fraction of the citizens want an abortion regime more restrictive than Roe and subsequent decisions allow. I don't know what the most recent polls say here, but the older ones I remember showed large majorities in favor of restrictions that SCOTUS has disallowed.

I would bet that two-thirds or so of Americans would sign on to a proposal to allow abortion in the first three months only. That's not "consensus," but it's better than we have now. Only we can't have it, because Roe and Casey say no.
5.4.2009 5:50pm
Milhouse (www):
Alan's claim that a pro-abortion stance would mean believing that everybody ought to have an abortion whether they want it or not, is similarly dishonest. Imagine claiming that John Calhoun or Jefferson Davis were not pro-slavery because they didn't insist that everybody who can afford a slave must buy one!
5.4.2009 5:57pm
Allan (mail):
Michelle,

I would agree that it is a metric. I am not sure that it is the "right metric".

But what legal reasoning would allow for abortions in the first trimester and not more? Roe and Casey do say no.

Roe is bad for a number of reasons, and this is one of them. What is not bad is that it does not stop all abortions. But that does not lead me to support the ruling. Me wanting to get rid of Roe does not make me anti-abortion. Nor does wanting to criminalize abortions in the second trimester.

On the other hand, if I want to have a society with no abortions, but not to criminalize abortions, am I anti-abortion?
5.4.2009 6:00pm
Allan (mail):
Mihouse,

Calhoun and Davis may well have been pro-choice on slavery.

On the other hand, Jefferson has been posed as being anti-slavery, but he owned slaves. Damn hypocrite. He should be stripped of his title of "cool guy".

Those who were anti-slavery were truly anti-slavery. They meant: "no slaves under any circumstance." I would think that the anti-abortion supporters would have the same view.
5.4.2009 6:05pm
Michelle Dulak Thomson (mail):
Allan,

But what legal reasoning would allow for abortions in the first trimester and not more? Roe and Casey do say no.

No "legal reasoning" would. But then no serious "legal reasoning" stood behind Roe's third-trimester cutoff either. My point wasn't about what the Constitution demands, but about what the public wants vs. what the Constitution is now read as demanding.

If "pro-choice" means you want abortion available in at least some circumstances, and "anti-abortion" means you oppose it anywhere and everywhere, of course the vast majority of Americans are "pro-choice." But if "pro-choice" means that you want American abortion law to be as it is or more relaxed, and "anti-abortion" means you would like it more restrictive than it now is, most Americans are "anti-abortion." Only, since the issue has been lifted out of the legislative sphere altogether, they can't legislate their preferences.

I think the country would be capable of making its own laws, state by state, in this matter; only since we've been told that the sort of law that most of Western Europe tolerates fairly well does violence (invisible, but none the better for that) to the Constitution, we can't.
5.4.2009 6:52pm
keypusher64 (mail):
Strom Thurmond felt very comfortable as a Democrat in 1960

Strom Thurmond joined the Republican party in 1954. As in so much of his life, here he was a trailblazer.

Are you aware of any law restricting the temporal ability to get an abortion? That is, any law saying than an abortion after X date is illegal? I'm not aware of any.

There are many such laws still on the books. They are unconstitutional to the extent that they do not have an exception for the health of the mother, which as you (DangerMouse) have said pretty much swallows any contrary rule.
5.4.2009 6:58pm
keypusher64 (mail):
Re whether Roe was an extreme decision, it would probably make more sense to look at both public opinion and the law when it came down in 1973 that public opinion today. I have read (though I haven't checked) that it invalidated the laws of 49 states.

I have not seen a poll of public opinion on the issue. I do know that the Democrats were tagged in 1972 as the party of "acid, amnesty (for draft evaders, not illegal immigrants) and abortion." Presumably whoever did the tagging thought that most people were against acid, amnesty and abortion. On the other hand, this suggests that changing abortion law was on the agenda in the early 1970s.
5.4.2009 7:03pm
Crackmonkeyjr (www):
Michelle Dulak Thomson: Most abortion polling is nearly useless to pinpoint what most people believe.

I was able to find a number of polls about whether Roe v. Wade should be overturned, and most came out 60/40 against overturning the decision. You can see the polls at http://pollingreport.com/abortion.htm
5.4.2009 7:06pm
Michelle Dulak Thomson (mail):
I should add, Allan, that I don't agree with your all-or-nothing line. I would be surprised if you yourself agreed with it.

There are people who really don't care how close a fetus is to birth when they talk about abortion. Some take any human embryo to be a human child. They, at least, are human; they're putting a dividing line at the only place it's logical to put it: between the separate egg and sperm and the new combination of them. At the other end of the spectrum, I remember arguing ages ago with a fellow who insisted that a fetus wasn't a human life until it had drawn breath — citing the bit about "the breath of life" in Genesis as proof. This man would seriously have argued — indeed, did seriously argue — that a fetus was no more to be considered "alive" than a rock until it had drawn breath; you could strangle it neatly with the umbilical cord and treat the result as no more than a rather badly-made sculpture. Unless it managed to breathe, of course; then you were royally screwed.

The thing is, most of us are somewhere in the middle — not quite thinking of fertilized eggs as babies, certainly not thinking of full-term fetuses as "biological waste," but wanting in some way to protect what looks to us like human life. And Roe and its sequelae mean that we can't. Not even to the degree that Our Betters The Europeans do.
5.4.2009 7:09pm
Michelle Dulak Thomson (mail):
Crackmonkeyjr,

Most people, with good reason, don't want to see Supreme Court decisions overturned lightly. As regards Roe, there's the additional complication that a distressing number of people think that overturning Roe would instantly make all abortion illegal everywhere. Only a sliver of the electorate wants that.
5.4.2009 7:17pm
keypusher64 (mail):
Crackmonkeyjr (www):
Michelle Dulak Thomson: Most abortion polling is nearly useless to pinpoint what most people believe.

I was able to find a number of polls about whether Roe v. Wade should be overturned, and most came out 60/40 against overturning the decision. You can see the polls at http://pollingreport.com/abortion.htm


To be honest, I am surprised 40% think it should be overturned. Supreme Court decisions command a surprising amount of deference just because they are Supreme Court decisions. Also, most people think that if the decision was overturned abortion would immediately become illegal.

I suspect Roe (without Bolton's gloss) is pretty close to where people come out on "sensible" regulation of abortion. But I don't think it was the Court's place to make that decision. But the Court did it, and the Court got away with it. I suspect along with Miranda that Roe is now the Court's most popular decision.
5.4.2009 7:18pm
rosetta's stones:
I've heard it said that in 1973, most of the country lived within 150 miles or so of a legal abortion, and state laws would have likely gotten more permissive over time, if anything. But the SC then decided to legislate an acceleration of that permissivity, throughout the land, and in a manner that roils our politics yet today. Here and there, legislators and courts have tried to walk the cat back, or even laterally, but that's an exceedingly difficult exercise, and adds to the roiling. This should be a case study for blackrobed fascists everywhere.
5.4.2009 7:43pm
Crackmonkeyjr (www):
rosetta's stones: I don't doubt that abortion law would have liberalized over time without the Supreme Court stepping in, but I highly doubt that 150 mile figure. It appears from Wikipedia that only 4 states had fully legalized abortion (i.e. you didn't need an excuse): New York, Washington, Alaska and Hawaii. I'm not buying that the majority of the population lived within 150 miles of these states (especially with two of them being Alaska and Hawaii).

Even if you include states that allowed abortions if you have an excuse (health, rape, expected birth defects), you still wind up with huge expanses without abortion, including the entire inland north of the US and Texas.
5.4.2009 8:15pm
Desiderius:
When the Boomers die, Roe will go with them, and good riddance. Its too tied up in the Women's Liberation movement (rightly) dear to Boomer hearts to go before then.

Nearly all states will then pass pro-choice laws with some exceptions, but gradually these laws will be overturned, with the campaign to overturn them led by those who have fought to expand rights for going on 300 years - liberals. Killing little Zoe in the ultrasound will not be acceptable by century's end, and shortly thereafter, if not before, those who supported abortion throughout history will be (wrongly) relegated to the same category as those who, not rarely with the best of intentions, originally supported our first peculiar institution.

This is predictive, not normative in any sense. The abortion debate is a conflict between our two most deeply help values, and my sense is that at the end of the day, the life and liberty of future generations will continue to trump the liberty and pursuit of happiness of the present one.
5.4.2009 10:06pm
Desiderius:
Dan28,

That's some slight of hand, but the cultural and economic can not be so readily separated. Indeed, we have the Bryanists very much with us, and they are very much still the core of the Democratic Party, though now that they've added the Roman Legions Government Unions to their ranks, they of course look much more like America.

If you need proof of this reality, see President Obama's recent kow-towing to the UAW and NEA, in violation of the rule of law in one case, and freedom of association in the other, both of which should serve as pillars of any liberal, let alone progressive, order, but instead have fallen by the wayside in the name of hating the right people, and the unity that inevitably flows from such shared hate. Liberals should strive for better means toward unity. That's what makes us Liberal.

What is most utterly bizarre is your characterization of the current aggrandizement of big labor/government/business corporatism (on which Yankee "Republicans" and their new reactionary friends have evidently reached an agreement) to be somehow "left-wing", with those resisting it therefore on the right. Jefferson taught, and revolutionaries the world over have since have learned, the hard way, that the only sure guard against the overweening power of the strong is the shackling of the means of exercising that power through the coercive power of the state, and the dispersal of that power throughout the various civic institutions of the people.

Oppose this if you will, but please stop dishonoring the name Liberal by claiming to be one, or defaming those who actually are.
5.4.2009 10:25pm
David M. Nieporent (www):
As for abortion, if you ask the question properly, only a small portion of society opposes abortion. That is, those who would oppose abortion even in the case of rape or incest, and even if not having an abortion would kill the mother.
That's not "properly." That's push polling. To say, "even in the case when..." is to imply in the question itself that this is an extreme position.
There is no-one out there who is pro-abortion (well, maybe there are a few). That is, people who would have all pregnant women, no matter the circumstances, have an abortion.

Everyone else is pro-choice, with the only question being where to draw the line.
What you're doing here is dishonestly redefining "pro-choice" to the point where even the Catholic Church could be considered pro-choice. Someone who wants to ban 100% of abortions is pro-life, but someone who wants to ban 97% is pro-choice? No, sorry. That is not the way the word is used in modern American politics, or in common discourse.
5.5.2009 6:49am
David M. Nieporent (www):
I was able to find a number of polls about whether Roe v. Wade should be overturned, and most came out 60/40 against overturning the decision. You can see the polls at http://pollingreport.com/abortion.htm
But that's a bad poll because it assumes people know what Roe v. Wade is and what it held. A better question is to quiz people directly on what they think about abortion and under what circumstances it should be legal. (You can find some of those polls at the same link.) Virtually all people think abortion should be legal to save the life of the mother, and most think so for rape-and-incest, or for health-of-the-mother narrowly defined. On the other hand, the notion that abortion should be legal for people who just don't want to have a baby is very unpopular.
5.5.2009 6:55am
Ryan Waxx (mail):
Pre-campaign, McCain took the position that the US should not use coercive interrogation techniques, both the military and the CIA. In the campaign, he limited this to the military (exempting the CIA). Seems like he was for outlawing torture before the campaign but open to and/or supportive of it during the campaign. I'd call that a significant change.


You mean, he said he'd do what Obama (that well-known Bush clone!) is now in fact doing?
5.5.2009 8:06am
keypusher64 (mail):
Desiderius:
When the Boomers die, Roe will go with them, and good riddance. Its too tied up in the Women's Liberation movement (rightly) dear to Boomer hearts to go before then.

Nearly all states will then pass pro-choice laws with some exceptions, but gradually these laws will be overturned, with the campaign to overturn them led by those who have fought to expand rights for going on 300 years - liberals. Killing little Zoe in the ultrasound will not be acceptable by century's end, and shortly thereafter, if not before, those who supported abortion throughout history will be (wrongly) relegated to the same category as those who, not rarely with the best of intentions, originally supported our first peculiar institution.

This is predictive, not normative in any sense. The abortion debate is a conflict between our two most deeply help values, and my sense is that at the end of the day, the life and liberty of future generations will continue to trump the liberty and pursuit of happiness of the present one.


Glass wombs. Aldous Huxley had the end of the abortion debate figured out almost before it began.
5.5.2009 8:48am
Allan (mail):
Terminology is a problem.

If you define anti-abortion as someone who would concede that reasonable controls on abortion procedures, like all other medical procedures, is necessary, then I am anti-abortion.

If you define anti-abortion as someone who opposes abortion with the exception for the health of the mother, I am not anti-abortion.

If you define pro-choice as someone who condones abortion because you do not like the sex of the child, I am not pro-choice.

If you define pro-choice as someone who believes that a woman has a right to choose what to do with her body, within limits, I am pro-choice.

I have my definition, you have yours.
5.5.2009 1:20pm
DHSophile (mail):
Getting back to Orin's post, I think he's missing an important point, which is that you can't really assess Souter's votes as "Republican" or "not Republican" without taking into account the unusual importance he attaches to existing precedent. Souter has served at a time when the existing legal and constitutional principles have largely come from the Warren and Burger courts -- particularly in hot-button areas like criminal procedure, privacy, voting rights, employment discrimination, etc. As a result, much of the conservative/federalist legal project (as exemplified by Justices like Scalia and Thomas) has focused on "correcting" what are seen as Warren/Burger Court excesses -- and that's where the most important right/left battle lines on the Court have been drawn. In that context, a judge who gives high priority to continuity and to respect for existing legal principles and cases (i.e., David Souter) will unavoidably be voting on the "liberal" side of the divide most of the time. That doesn't necessarily mean he's not a Republican, or that he's voting with Ginsburg because they share the same political philosophy.
5.5.2009 4:06pm
Desiderius:
DH,

Great point - hope Kerr notices it. Fits well with his thesis.

Allan,

"If you define pro-choice as someone who believes that a woman has a right to choose what to do with her body"

Does anyone actually believe that this formulation is serious? That anyone actually cares what the woman does with her body? The question is the new body created inside her body, that can be considered her's but not entirely her's even if you don't believe that body to be human at conception.

I think we're at the point where this strawman hurts abortion advocates worse than opponents, in that they don't even recognize what a strawman it is.
5.5.2009 7:23pm
jgshapiro (mail):
Allan:

I think the terms as commonly used are not consistent with how you use them. You can play the opposite game too and argue that anyone who agrees with any restriction on abortion, such as forbidding partial birth abortion -- must be pro-life, since they are willing to favor the baby and oppose the mother at least some of the time. At some point, you are just playing word games.

More specifically, I think that someone who thinks that abortion should be allowed only in the case of rape or incest and/or only where the woman's life is on the line or there is a serious health risk (e.g., major organ failure, not depression) is generally considered to be pro-life and not pro-choice. So the numbers are considerably off from your 16% pro-life number.

That having been said, polls on this issue are always volatile in results depending on how you ask the question. If the question focuses on the baby, they skew pro-life, while if the question focuses on the mother (and especially if it focuses on punishing the mother or doctor), they skew pro-choice.

In any event, I think it is more or less accurate to say that the country is relatively evenly divided over the question, with no more than 40% embracing either position consistently. With those kinds of numbers, I think it is pretty silly for dangermouse to call Roe extreme, even if he thinks it is wrong. Left to their own devices, many states -- including some of the most populous, like CA, IL and NY -- would have come to the same position, which belies a claim of extremism.
5.8.2009 3:30am

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