Monday, December 8, 2008

compromise is a two player game

James talking with Ross and Conor about Ross's op/ed about abortion:
These seem to me to be suggestive of a single complaint — that even pro-choice Republicans should admit that Roe and Casey are bad law and should be overturned on that constitutional ground alone. Then this kabuki dance of substitutive/transitive cultural cues could be dispensed with, Republicans could reclaim ‘being pro-choice’ as a prudential disposition about which reasonable people can differ in a constitutional democracy (instead of a conviction about the character of abortion as a quasi-human right), and Mitt Romney could pivot movement conservatives away from Palin once and for all.
Uh, what if pro-choice conservatives think (gasp) Roe and Casey are valid law? The central notion that underpins the entire pro-life compromise discussion is that it is simply an article of faith that Roe and Casey are badly decided. But that's not a universal opinion by any stretch of the imagination. Saying "well, if we could just throw out Roe and Casey we could have a conversation about abortion compromise" is like saying "well, if we could just throw out the Second Amendment, we could have a conversation about gun control compromise." Internally consistent statements that nevertheless have little salience for real life.

And the operative question is, why on earth would pro-choice people feel compelled to compromise on anything now? After the most glaring and demoralizing defeat of ideology that supports the pro-life cause? As Ross admits in his op/ed, the chances of Roe and Casey being meaningfully challenged went from slim to very slim on November 4th. This conversation centers around the prerequisites for a "grand bargain" style compromise when the pro-life side is in absolutely no position to negotiate. Ross's hypothetical situation where the pro-life base might compromise has become kind of irrelevant, if you don't mind my saying so. It's someone talking about the conditions in which his movement might compromise, if things break just the right way, while his newly emboldened and empowered opposition goes about the business of advancing its own agenda. The time for conservatives to compromise on abortion was when they held the Presidency, the congress, and were remaking the courts. But, of course, it's the nature of politics to want to act triumphantly in times of ascendancy, so that probably couldn't have happened.

Update: The more I think about all this abortion compromise business, the more it becomes clear to me that this is a simple case of people being upset that they don't have the kind of consensus support they need to effect change they want. Well, look, there's plenty of changes liberals would like to make if we could gin up the support for it. We could abolish the electoral college, which benefits conservatives beyond their numerical support. We could tie Senate seats to population instead of rewarding low-population states like Wyoming with the same number of Senators as California, which does the same. Can't do it, though, because we lack the kind of broad majorities that are required to make that kind of change. Same thing with outlawing abortion. I understand the pro-life side is very passionate. But you lack the kind of broad public consensus necessary to outlaw abortion. I'm sure that's frustrating, but that's the American system.

The whole "nobody voted on it" argument is just a dodge. No conservatives agitate against the Supreme Court case overturning the DC handguns ban, no conservatives agitate against Brown vs. Board of Ed (anymore), few dedicated Republicans complain about Gore vs. Bush. If you want to change the entire court-review system of enforcing constitutionality, that's a project you can start, but when you apply that complaint completely arbitrarily based on the political content of individual cases, you make your argument a joke.


Jake said...

As a pro-lifer, I'm constrained to admit that you're right. The pro-choice crowd won... it's over. Now, can pro-choicers please shut the hell up about it and stop saying things like thus and such would "endanger Roe"?

As you likely know, the only thing that would "endanger Roe" would be (i) a constitutional amendment banning abortion, which would never happen or (ii) a civil suit that worked its way up the judicial pipeline, where SCOTUS granted cert, and where two justices in addition to Scalia/Alito/Thomas agreed to reverse Roe.

I should also note that there are several valid objections to the LEGAL (not political) reasoning employed in Roe and Casey.

william randolph brafford said...

If it were just you and I playing the game, I'd trade the electoral college for abortion restrictions, even if only in the second and third trimester.

PithLord said...

Roe is widely criticized by pro-choice legal liberals -- most prominently by John Hart Ely, who worked for Warren and Brennan. In fact, almost no one actually defends Blackmun's actual reasons.

Freddie said...

Oh, sure. In fact I hardly disagree with that myself. The question is, is it uniquely poorly argued, and more importantly, is it uniquely "anti-democratic"? I think that it isn't; and pro-lifers who rage against it as a judicial activism or against judges making decisions about constitutionality in toto rarely if ever apply that reasoning to other decisions.

Matt said...

Uh, what if pro-choice conservatives think (gasp) Roe and Casey are valid law?

I phrased a similar notion differently in a comment on culture11. There are many pro-life (or as I like to put it, "abortion nonsupporters") conservatives, particularly Catholics, who accept that fact that Roe and Casey are settled law. Whether they are bad or not (and in my neophyte legal oppinion, Roe was wrong) is kind of irrelevant now. We can debate the rulings all day, but there not going anywhere.

As you note, there is no reason for pro-Roe individuals to compromise on the issue. This is why FOCA is being hailed as the "codification" of Roe by its supporters. They have won the battle (politically). The only answer conservatives have to respond with is culture, reverting from their maniacal obsession with the Supreme Court and turning the heads toward fostering culturally conservative values at home.