Barrett: There Is Nothing Super About The Precedent In Roe v. Wade

Below is my column in The Hill newspaper on Roe v. Wade and the doctrine of stare decisis (or the respect and preservation of precedent). One of the most notable moments in the hearing came when Judge Barrett suggested that Roe was not “super precedent.”  Indeed, she noted that the concept of “super precedent” is the work of others in academic publications. However, on Roe, Judge Barrett had an interesting exchange with Sen. Amy Klobuchar, D-Minn. in which she identified Brown v. Board of Education as such super precedent. However, when pushed on Roe, she noted  “I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall into that category.”

This issue was addressed in the column:

The story broke that Supreme Court nominee Amy Coney Barrett did not disclose that she spoke to antiabortion student groups in 2013. The only thing less surprising than a former academic not remembering two talks with student groups is that Barrett spoke to prolife groups. The news was about as earth shaking as discovering that Ruth Bader Ginsburg spoke to prochoice groups in 1973. Both jurists started their careers by writing and advocating on procreational issues from opposite sides. Yet this is all part of the theater of the absurd Senate confirmation process.

It is no secret that Barrett is prolife and a critic of Roe v. Wade. Much like Ginsburg, Barrett would come to the Supreme Court with defined and deeply considered views of jurisprudence. Unlike some former nominees, she is no work in progress. She comes fully formed as a legal intellectual. When Clarence Thomas was asked about Roe in his confirmation hearing, he said he really had not thought much about it. It was unclear whether it was worse that a nominee had not thought about a defining issue for the Constitution or was lying to avoid talking about his view.

Barrett has thought a great deal about Roe. She has written sophisticated articles on her objections to the ruling. The Supreme Court rejected much of the original rationale for Roe while still backing the protected right. But Barrett will likely decline to discuss it despite her view which is known and obvious. The reason is the justice she seeks to replace. Ginsburg declined to discuss her view of Roe in her confirmation hearing in terms of future decisions despite her written record supporting the case and the right to choose. It has become known as the Ginsburg rule. Now her likely successor will be asked to discuss the very same issue despite her own clear intellectual record.

What is frustrating about the Ginsburg rule is that it is only respected by the party supporting the nominee. Those in opposition will simply ask if Barrett will respect the precedent of Roe on the doctrine of stare decisis, under which the Supreme Court seeks to avoid overturning former cases. It is a curious demand if a nominee believes a case was wrongly decided and therefore violates the Constitution. A nominee takes the oath for the Constitution but then has to promise to ignore its meaning in preserving erroneous rulings. If Barrett believes Roe was wrongly decided, then she should vote with her conviction and with the Constitution.

Stare decisis is at times an absurd application in confirmation fights. After all, few people regret that the Supreme Court overturned cases like Plessy versus Ferguson that ended segregation, or Bowers versus Hardwick that ended criminalization of homosexuality. Those cases were rightly viewed by the overturning justices as wrongly decided under the Constitution. It is not to denote that stare decisis is invalid. It is valuable for the Supreme Court to maintain consistency and continuity in precedent.

This is notable in the interpretation of statutes, where Congress has the power to amend the law. The interpretation of the Constitution, however, is not subject to such legislative correction. This defines the fixed rights within our system, ensuring promises for citizens and states alike. With a significant issue like the existence of an individual right or state power, a justice must be guided by the meaning of the Constitution, regardless of how many justices had wrongly interpreted the issue before.

Stare decisis often seems honored more in the breach by justices in the majority and most often cited by justices in dissent. When they secure a fifth vote, justices often lose their adherence to precedent. Senators are also hypocritical with the doctrine. In the confirmation hearing for Brett Kavanaugh, Senator Sheldon Whitehouse demanded that he promise to respect stare decisis on cases like Roe, then called for overturning cases such as Citizens United versus Federal Election Commission.

Some insist their favored precedents be treated like “super precedents” that could never be overturned. While Barrett has noted the existence of such precedents, scholars disagree on which cases render such special consideration, and some disagree with the idea of inviolate cases if they are based on invalid interpretations. Would the same senators have told Ginsburg to ignore her view of the right to choose simply to preserve the precedent denying its existence? As a justice, you have a duty to respect the rights given for individuals or the states and not conveniently ignore the Constitution in the interests of the Supreme Court itself.

It is possible to support the right to choose and not Roe. Ruling that the Constitution does not create a protected right to an abortion would not mean that abortion would be illegal in the United States. It would be the matter of statutory law. The vast majority of states will likely protect the right to an abortion. Joe Biden made this point in a recent event. Asked what he would do if Barrett helped to reverse Roe, Biden said he would enact legislation that would make Roe “the law of the land.”

It is not clear how Congress would order states to allow abortions if the Supreme Court ruled it is not a right protected by the Constitution. That could force an administration under Biden on a collision course with the 10th Amendment and our federalism guarantees. But most states would reaffirm that, as a matter of the law, abortions are protected.

That is why we have to end the sham of stare decisis politics. A nominee should confirm that she will interpret the Constitution faithfully, even if it means overturning a historic case. To do otherwise sets an interest of the Supreme Court above that of the Constitution itself. While Barrett should refuse to answer on how she would rule on specific cases, she can affirm that she will faithfully interpret the Constitution. That is the principle she embraced in a former article where she wrote that a justice must decide “whether it is better for the law to be settled or settled right.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

249 thoughts on “Barrett: There Is Nothing Super About The Precedent In Roe v. Wade”

  1. Turley: “Jailing Women And Doctors Is Fine”

    The Anti-Abortion movement is chronicly disengenous. For decades they have pretended the entire abortion issue is merely a question of ‘life’. But abortion would have never been legalized if the issue was that simple. In other words, the Anti-Abortion movement willfully disregards history in pushing its agenda. The so-called ‘pro-life’ forces pretend that once Roe vs Wade is over-turned, everyone will cheerfully accept the decision.

    One could argue that alcohol is, and always has been, a life issue. Alcohol is a leading cause of premature death, accidents of every type, domestic violence, rape and other crimes. A large percentage of prison inmates are serving time for incidents that occurred while they were drunk. Therefore one could argue that the prohibition of alcohol this country had from 1919-1933 was perfectly correct.

    But only a low percentage of Americans would honestly want to bring back Prohibition. No one wants organized crime thriving once again from bootleg liquor sales. No city wants illegal bars creating a shadow economy beyond the auspices of fire and safety regulations.

    So it’s ridiculous when presumably prominent academics like Professor Turley give cover to the idea that we can go back the days of back alley abortions. No realistic observer, living in the present, thinks the criminalization of abortion is feasible or desirable.

    1. That’s a word salad woefully lacking any nutritional value. Too bad for you that the lead-based paint abatement agenda wasn’t enacted before you thought it had nutritional value. And no realistic observer of your commentary would conclude otherwise.

      1. Olly joins his friends mespo727272 and Allan in showing that insulting people and deflecting are among their go-to strategies.

        1. When they don’t have facts and truth on their side, it’s the only way to go. They have conceded the argument so they use ad hominem.

        2. Olly is an obese wreck of his former self who fancies himself as ‘starkly pragmatic’. One of those spiteful old conservatives imaging his point of view represents the ‘silent majority’. Thankfully his type will be aging out in the not too distant future.

    2. This comment completely mischaracterizes the ‘pro life’ position. Try it this way: Murdering children in the womb is monstrous. Murder is a crime in virtually every jurisdiction on the planet.

      1. But legal abortions are not defined as murder, just as capital punishment isn’t defined as murder and killing a beating-heart but brain-dead body by removing its organs for transplantation isn’t considered murder. Our laws repeatedly distinguish between kinds of killing that are murder and kinds that aren’t. Simply insisting that all abortions are murder isn’t convincing.

        Do you have a non-religious and biologically sound argument for **why** we should consider an embryo to be a person and abortion to be murder?

  2. I enjoyed this column, Professor Turley. It seems to me some of these senators either don’t understand the concept of a Supreme Court and the judiciary in general, or they’ve got very bad motives.

  3. Turley claims: “Barrett will likely decline to discuss it despite her view which is known and obvious. The reason is the justice she seeks to replace. Ginsburg declined to discuss her view of Roe in her confirmation hearing in terms of future decisions despite her written record supporting the case and the right to choose.”

    No, Turley, the reason she won’t discuss it is to prevent the American people from hearing her far-right views straight from her own mouth, which will hurt Republicans politically. Please stop ;trying to elevate this person to Justice Ginsberg’s status. She’s not qualified to have her name uttered in the same breath.

    1. Then you want your future justices to rule on cases before they ever get there and disclose that to congress? Barrett’s positions on any case is no different than Ginsburg, Sotomayor, Kagan, Kavanaugh or Gorsuch. Please do some research on previous confirmations and how they responded.

      1. Ron,

        I quoted a bit from Ginsburg’s confirmation hearings below (in my 8:54am comment). She was much more forthcoming about her views on abortion rights than Barrett has been.

    2. She declines to discuss it for the very simple reason neither she, nor Justice Ginsburg, nor any other Justice can say how they would rule on a case that has yet to come before them. Unless a case challenging Roe makes it through the courts, is granted cert, is heard and, on the merits of the issue presented, the Court overturns Roe, Roe remains precedent.

      1. She isn’t being asked to “say how [she] would rule on a case that has yet to come before them.” She’s being asked to comment on precedent, which she has done quite a bit in discussing other cases.

        As for Roe, AFAIK, it’s not current precedent, as it was supplanted by Casey.

        Ginsburg discussed both Roe and Casey. Why won’t Barrett discuss them?

        1. It was followed in part and further modified by Casey not supplanted. Supplanted is not a meaningful term in that context. Overruled, followed, and modified are your choices.

          1. Thanks for letting me know the proper terminology, Kurtz. I’ll try to remember (but can’t guarantee that).

            Returning to the issue, I’ll quote a U of MI Law School prof, Leah Litman:
            “Judge Barrett told @SenBlumenthal that her article said *asking questions* was par for the course in hearings, but *answering questions* was not.
            “That’s not what the article said: ‘[A]nswering hypothetical questions about … particular precedents is par for the course'”
            https://twitter.com/LeahLitman/status/1316455606459478022 — the tweet contains a longer quote from Barrett’s article

            The citation for the article that’s excerpted from:
            Barrett, Amy Coney, and John Copeland Nagle. “Congressional Originalism.” U. Pa. J. Const. L. 19 (2016): 1

            She is now trying to avoid answering hypothetical questions about precedents, even though she herself stated that in confirmation hearings “answering hypothetical questions about the soundness of particular precedents is par for the course.” This kind of evasiveness on her end does not serve the country well.

  4. With consideration to Roe: since the original decision, much advancement in science now determine that there are 3 separate DNA specific individuals within that “private” conversation and that now the unborn AND separate DNA individual within the separate DNA womb of the woman needs an officual advocate to speak for him/her with regards to the termination of its life.

    This new scientific knowledge would make the entire concept of privacy null. All decisions on abortion must now considerr the rights of that separate and distinct DNA individual.

    1. The Constitution does not establish rights on the basis of “distinct DNA.” People have rights. An embryo is not a person.

      1. I am inclined to agree. Each individual cell has complete DNA which could produce an individual person. Few doubt that cloning of humans is within reach if not already accomplished. Yet cells with complete DNA are not remotely considered humans with rights.

        At what stage cells with human DNA have developed enough to be regarded as a person is a question of taste, custom, policy and law; informed by science but not settled by science.

        1. Yes Congress could always quit whining about Roe V Wade one way or another and define who is a person for purposes of law by passing national legislation.

          Of course that’s what they were dodging in the first place when they got the SCOTUS to invent new law in Roe V Wade by judicial power.

          If Congress had the ballz they could get it done but we know they ever dodge hard issues and leave them to SCOTUS.

          1. SCOTUS already addressed it:
            “The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

            1. ‘The use of ‘person’ only has application post-natally’ CTHD paraphrase.
              ***

              True. Is this where the ‘living Constitution’ is supposed to come in?

              In fact, medical advances have changed our knowledge. No Founding Father ever saw a sonogram.

              As Kurtz suggested, Congress could lay off grandstanding and fundraising for a little while and make a genuine effort to address this issue. But it won’t.

              Ultimately it may be better to let a solution evolve naturally in the common law processes of state courts and in state legislatures. By addressing actual problems as they arise the solution(s) may be more complex than direct legislation but better able to address the issue when, as it must, it is actually used in individual cases.

              A ‘person’ is what we say it is.

              1. yes i agree with CTHD that “person” in those places means a post natal human. i am just saying as young explains, it COULD be further defined in law by Congress. Why don’t they step up to the plate?

                And if you get that concept, the notion applies to either party when they have had the power to craft a bill that would make it past both houses of legislature and a veto. in fact both parties have had the chance since roe v wade more than once it seems to me

                fact is Congress is made up of cya memo type chickenshtz of either party who just loved it when Roe took the issue off their plate indefinitely

                1. If you think it’s straightforward, Kurtz, send your members of Congress a proposal.

                  How do *you* propose “person” be defined, if personhood begins at some point other than birth?

                  1. I don’t send letters to Congresspeople. I have a pretty good idea what they do with them and so do you. If I really want to be heard, I can always schedule a meeting. Yes, that can be done. But it’s not my style. I’d rather spin out a few thousand comments here instead.

                    I am not a partisan on this issue. I lose no sleep over women terminating the beings in their wombs. Then again I lose no sleep over anything besides work.

                    And yet. Obviously there is a distinct being when the zygote is formed in the biological sense. Though it is part of the woman’s body at least until it starts its journey past the cervix. I find it very distasteful that there are procedures used in any significant numbers at all which dismembers a baby once it’s past the cervix. This is barbarous homicide and qualitatively different than a chemical abortion or a D& C in my viewpoint.

                    I am amazed that people can apologize for D & X outside of some sort of other factor like rape or serious health problem for the mother or even gross fetal abnormality. So if you want to pin me down, for now, that’s where Im at. I have little concern over chemical abortifacients nor even D & Cs and could even stretch my tolerance to cover a D & X under situation of a rape, serious health concern, or gross fetal abnormality like anencephaly. The way I understand it my liberality about this is more or less in line with Roe and Casey which makes some distinctions about when the abortion may occur.

                    I am almost embarrassed to admit that since i loathe feminism and consider “pro choice” and all its usual propaganda obnoxious and offensive. But there you have it. That’s where Im at on this for now.

                    There is a silver lining of course. I observe the present liberal abortion regime of laws most of all helps control the number of future illiterates and criminals.
                    hat’s fine by me. In fact I welcome it. If I had a vote I might even increase funding to Planned Parenthood.

                    This is all a sinful position on my part. I’m a Catholic but I suppose I am disqualified from communion for five or six other reasons already. But I am taking my chances with it anyways.

                    Now the Bishop of Rome aka the Pope has cast shade on capital punishment. Capital punishment doesn’t bother me either. Sorry Francis. So long as they have the right person and they receive due process of law. So the court and jury has to get it right. Otherwise that’s bad too. But when the state terminates someone under just and licit circumstances, I have no problem with it.

                    1. I didn’t ask your opinion on abortion, Kurtz.

                      You said “[“person”] COULD be further defined in law by Congress. Why don’t they step up to the plate?,” and I asked *you* to step up to the plate and say how you propose “person” be defined. That’s a much more general question than your beliefs about abortion.

                    2. P.S. as an example of how I’m asking you a much more general question:
                      The Constitution requires that all persons be counted in the Census. Your definition has implications for that count: do embryos get counted? do 8th month fetuses get counted? etc.

                      Don’t focus on abortion. Focus on the issue you raised: according to you, how should “person” be defined, for all of its legal applications?

                    3. Sorry CTHD I just did what politicians always do. I talked about what i felt like talking about and didn’t worry too much about your question. It’s not a deposition here after all.

                  2. Maybe start with viability and work from there. Or begin at a point where nearly everyone can concede that the unborn should qualify as a person. An hour before birth? A week? A month? At what point does killing a pregnant woman become a double homicide?

                    Start somewhere and work it through.

                    1. Sure why not. let the cowards of Congress who whine about Roe in one direction or another take in on themselves to legislate. they have the power and authority to do so. Furthermore they can strip article III of jurisdiction over it. Hell they could even make an amendment if they had the ballz. They dont.

                      So it goes back on 9 people. And they call this a democracy and whine about it every day. But a lack of democracy is precisely what they got and what they want to preserve. Fakest of the fake

                      I could really care less. Pick a gestational phase, make distinctions, do whatever you want to do. I could care less if abortions are legal now. but I am sick of hearing all the fake commentary about not overturning ACA because it’s democratic law and yet she has to retain Roe because it was judicial legislation that was ok and wonderful. The hypocritical stench of the Democratic leadership position is noxious

          1. there’s some corporations out there which need post natal abortions. i think twitter is the first on the list

    2. Alma: why are you so concerned with what another woman decides to do with her body? Is it because you believe that an immortal soul is conferred into a fertilized egg at conception? if so, what informs that decision? Can’t be science, so it must be religion. So, if this is what you believe, if a woman has an early-pregnancy spontaneous miscarriage (not involving an abortion), should she be required by law to collect the blood and tissue and take it to a funeral director, hold a funeral and pay for cremation and/or burial? Some states did pass laws requiring a funeral for an aborted fetus (as a deterrent, of course, which is where Barrett’s extreme views might play a role in upholding such laws). Of course, these laws were held to be unconstitutional. How about if a woman’s period is a couple of weeks late, and is then heavier than usual? Should she be required to collect her menstrual blood and turn it over for forensic examination to determine whether a funeral is in order? If a woman failed to contact a funeral director under these examples, should she be prosecuted for improper disposal of a corpse or whatever state laws apply to failure to properly dispose of a dead body?

      The entire point is where to draw the line on personhood. You say at conception. Roe says that only after the fetus reaches the age of viability does the government have a say-so; before that, a woman’s Constitutionally-protected right of privacy and equal protection do not allow government prohibition. Barrett would uphold laws creating as many obstacles as possible to exercise this right. She has written about how to do it. She is dismissive of the concept of stare decisis on the grounds of a non-existent super-precedent category of Constitutional law cases that are the only ones she claims stare decisis should apply. That’s just an excuse to force her religious beliefs on others, and it is is wrong. It is also the main reason the Federalist Society listed her as a top pick.

      She is cunning and evasive because she craves the power and what she perceives is the glory of a seat on the SCOTUS. However, just like Trump, there will be a cloud over her because the seat she occupies was stolen from the American people whose POTUS nominated Merrick Garland. Republicans refused to even interview him. She also knows she is being used for political purposes, and that the time that the Senate could better spend working on COVID relief is being used to ram her down the throats of the American people, whom she knows do not approve of the process with the election less than a month away. She doesn’t care. She’s on a mission from God, but she’s not one of the Blues Brothers.

      1. Natch: “Alma: why are you so concerned with what another woman decides to do with her body? ”
        ***

        The problem is at what point is a woman deciding what to do with someone else’s body.

        Do we wait until a kid can poke his head out and plea for mercy?

        Is shoving a hand out and waving it around enough to say the kid is a person?

        Aren’t there stages of viability before that where an abortionist must stay his hand or commit murder?

        Bumper sticker reasoning won’t serve with these issues.

  5. Jon, I’m curious as to your thoughts on the in depth mapping out of the monetization model for your blog laid down by Sheldon Whitehouse yesterday?

  6. “It is possible to support the right to choose and not Roe. Ruling that the Constitution does not create a protected right to an abortion would not mean that abortion would be illegal in the United States.”

    Sure. But why??? That would just mean returning to pre Roe days where women of means traveled to states where abortion was legal and women lacking financial means were stuck. Much as the religious right has been fixated on this issue since Roe, they shouldn’t be able to force their morality on others legally. ,The right to be able to access safe abortion is equal to the right to free speech in my way of viewing things, especially since I grew up watching my mother pre Roe taking part in an underground railroad of sorts for women to be able to travel from Ohio to NY for a safe abortion back in the day. And that was her own contribution to Christian principles of loving her neighbor like herself and in being her sister’s keeper. And that help came from within the hospital where she worked. It was an issue of practicality as they weren’t fans of women getting unsafe abortions and arriving back on their doorstep with a raging infection.

    Live by your religious values in your own life, sure. But don’t force your religious values –legally– on others who don’t share your religion.

    1. In no other respect is the Democrat party undermining its demographic advantages more than with blind support for Roe V Wade

      Accordingly, I favor honoring Roe V Wade as the law of the land, and further, increasing funding for PP contingent on them increasing services in the inner city.

      This may be sinful of me but given the state of creeping relativism in the Church, I am taking my chances. I will try and get into confession before I die.

        1. Republicans have been registering voters at an increasing pace recenlty. You may be shocked when the real count comes in.

  7. Democrats are laboring under the absurd assumption that a SCOTUS nominee disagreeing with the Left’s platform is somehow disqualifying! LOL!

  8. The “Ginsburg Rule” is a bit ridiculous. All the nominees have opinions on the major cases and issues and refusing to comment on these does not make them neutral, it just hides their views from everyone. While I agree that they should not comment on upcoming cases, it is completely valid and proper to ask them about their opinions on past cases. They should be required to how they would have ruled on cases such as Plessy, Brown v Board, Roe v Wade, and other historical cases.

  9. See Robert Bork on stare decisis. Per Bork, you can make a passable case that Article I does not delegate a power to issue paper currency; however, a judge who attempted to enjoin the operations of the Bureau of Engraving and Printing and the Federal Reserve would not be a meticulous adherent to the Constitution; he would be a madman. There are a short list of activities by the federal government that are not kosher but which attempting to enjoin would generate a social crisis, because architectural institutions or the long term decision-making of the public was predicated on that erroneous legal regime. Bork’s sketch of the appropriate repair to stare decisis would (one can surmise) protect the Federal Reserve, the Bureau of Engraving and Printing, the Social Security Administration, and the Center for Medicaid and Medicare Services.

    Annulling Roe v. Wade and Doe v Bolton would merely toss the abortion issue back to the state legislatures where it has belonged all along. The extant provisions restricting abortion in state codes have fallen into desuetude so could not be enforced as is, but could be re-affirmed by legislatures and modified in various ways. That’s going to cause a crisis for pervy gynecologists, not for the public at large.

    Hoping in the future for a jurisprudence of integrity. To wit, one which says: ‘necessary and proper’ refers to conduits to the exercise of expressly delegated powers and nothing more; that “equal protection of the laws” is an instruction to executives, not legislatures; that the distinction between ‘inter-state’ and ‘intra-state’ commerce is not factitious; that “the right of the people” refers to a personal right; that “cruel and unusual” is to be understood in the light of punishments commonly employed in occidental countries prior to 1788; that neither the ‘guarantee’ clause nor the ‘equal protection’ clause is properly construed to require that legislative constituencies be strictly equipopulous or to justify judges drawing district maps; and that no, the executive doesn’t need the permission of the judiciary to put a banal question on the Census forms.

    We’re badly in need of a constitutional convention to repair our damaged institutions. What we don’t need would be appellate courts who fancy that’s their job.

    1. “See Robert Bork on stare decisis. Per Bork, you can make a passable case that Article I does not delegate a power to issue paper currency; however, a judge who attempted to enjoin the operations of the Bureau of Engraving and Printing and the Federal Reserve would not be a meticulous adherent to the Constitution; he would be a madman. There are a short list of activities by the federal government that are not kosher but which attempting to enjoin would generate a social crisis, because architectural institutions or the long term decision-making of the public was predicated on that erroneous legal regime. Bork’s sketch of the appropriate repair to stare decisis would (one can surmise) protect the Federal Reserve, the Bureau of Engraving and Printing, the Social Security Administration, and the Center for Medicaid and Medicare Services.”

      Bork was right about that and many other things.

      Thanks for this insightful explanation

    2. A Constitutional Convention would likely be dominated by radicals on one hand and cowards on the other. I don’t want it.

          1. Except Romney’s a minority of one in the Senate. Kamala is a grotesque opportunist.

            I would assume that a constitutional convention would fail because it’s reports would not be ratified. Still a failed attempt at institutional reconstruction is better than no attempt. I’m not expecting it will ever be accomplished through legal channels. The question at hand is how long gross dysfunction and corruption can continue. Keep in mind, Harry Truman’s contemporaries in Congress managed over a period of about four years (1945-49) to reduce military expenditures by 80% with a 90% reduction in military manpower, power through a disagreeable economic recession, balance the federal budget, reconstitute the civilian secretariat of the armed services, and found two civilian intelligence services. Imagine our garbage Congress getting one tenth of that done. Oh, and control of Congress also changed hands twice during that period.

            1. I want to see a Constitutional Convention convened and then we can watch it go down in flames and then it will be a whole other ball game. So let’s have at it.

              The outcome could be California and the western states getting one rump section of the USA, the eastern seaboard another, and we can sort the rest out minus them just fine. There can be peaceful population transfers too, don’t like flyover? then radical Democrats can buzz off to California or the East coast where you can make whatever stupid laws you please. But you’re gonna be on your own budgetary ticket then, guys. & we’re gonna have passports and borders and different currencies too.

              We’re already ten times more different than the rump states of the USSR where when it devolved. There’s got to be some commonalities in a population for it to be a genuine nation and the USA increasingly fails the test. Right now it’s more like a fiscal racket than anything.

              I think it’s past time to start talking about this. If they want to pack the Supreme Court, ditch the EC, do whatever they want, impose the New Yawk Shity & Alta California agenda on the rest of us, how about we get a divorce, muy pronto!

              You know if this happened maybe we would get lucky and Canada would swallow up the poison pill of the NE and NW coastal states and Mexico could take have back SoCal too. Texas too if that’s what Texas wants. At this point we’d be better off I think. Le’s have a chat!

              1. Kurtz– Clearly you see clearly on this. This result would not surprise me.

                The problem isn’t with our institutions; it’s with the degraded people we put in them.

  10. Regardless of your opinion on the morality of abortion, Roe v. Wade was a poorly decided case that made up things never found in any precedent — which is what you have to do to justify your actions when you legislate from the bench.

  11. ABC is an Excellent nomination and she is running rings around the frustrated Dem’s who have no power to block her. You have these crazy questions and statements and its a nightmare to watch some of these elected Dem’s Senators. Wondering how did they get elected, is this the best we have.

    ABC should be considered for the Chief Justice position when John Roberts leaves.

  12. Turley’s statement that “Ginsburg declined to discuss her view of Roe in her confirmation hearing despite her written record supporting the case and the right to choose” is an outright lie.

    Do a word search on “abortion” and “Roe” to read what she said about it: https://www.loc.gov/law/find/nominations/ginsburg/hearing.pdf

    A few examples:

    “… The Court has once again said that abortion is part of the concept of privacy or liberty under the 14th amendment. What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court’s recent reaffirmation that abortion is a woman’s right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment. Perhaps I can say one thing more. It concerns an adjustment wehave seen moving from Roe to Casey. The Roe decision is a highly medically oriented decision, not just in the three-trimester division. Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and that pairing comes up two or three times in the opinion, the woman, together with her consulting physician. The Casey decision, at least the opinion of three of the Justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation withher physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides.”

    “You asked me how I justify saying that Roe (1973) has two underpinnings, the equal dignity of the woman idea, and the personhood idea of individual autonomy and decision making. I point to those two decision opinions as supplying the essential underpinning.”

    Feinstein: “… You are saying that Roe could have been decided on equal protection grounds rather than the fundamental right to privacy. And I think you noted that Struck could have served as a bridge linking reproductive choice to the disadvantageous treatment of women on the basis of their sex. Is that fair so far?”
    Ginsburg: “Yes, Senator, except in one respect. I nevermade it an either/or choice. That has been said in some accounts of my lectures. It is incorrect. I have always said both, that the equal protection strand should join together with the autonomy of decision making strand, so that it wasn’t a matter of equal protection or personal autonomy, it was both. … I would have had added another underpinning, one I thought was at least as strong, indeed, stronger. But my argument was never equal protection rather than personal autonomy. It was both. I used the Struck case as an example, because it wasthe first time I fully expressed myself on this subject. I urged that it was a woman’s choice either way—her choice to bear or not to bear a child. So the only amendment I would make in what you said is that it was never either/or; it was both.”

    1. CTHD, Turley is just a tool, by virtue of his complete lack of concern for Republicans failing their constitutional duty to advise and consent on the Garland nomination, thus stealing a SC seat from the majority of American voters who elected Obama twice, while playing defense for these same GOP senators who are now violating their own rule in order to get a SC seat to a President who American voters specifically rejected. Why would anyone take his “legal” opinions anymore seriously than we would “Better Call Saul”? He doesn’t care about the integrity of our courts.

        1. They neither met with the nominee or held hearings, so no, they did not advise and consent. You can expect senate majorities not of the same party as the president to never approve another nominee. I hope you’re happy with that outcome and thank the GOP.

          1. We’re gonna see about that. You write it down and let us know in a year if you were right. A lot of nominees come up besides this big one for SCOTUS and they barely have time to suss them out.

  13. Today’s WaPo:

    ‘Unmasking’ probe commissioned by Barr concludes without charges or any public report

    “The federal prosecutor appointed by Attorney General William P. Barr to review whether Obama-era officials improperly requested the identities of individuals whose names were redacted in intelligence documents has completed his work without finding any substantive wrongdoing, according to people familiar with the matter.

    The revelation that U.S. Attorney John Bash, who left the department last week, had concluded his review without criminal charges or any public report will rankle President Trump at a moment when he is particularly upset at the Justice Department. The department has so far declined to release the results of Bash’s work, though people familiar with his findings say they would likely disappoint conservatives who have tried to paint the “unmasking” of names — a common practice in government to help understand classified documents — as a political conspiracy.

    The president in recent days has pressed federal law enforcement to move against his political adversaries and complained that a different prosecutor tapped by Barr to investigate the FBI’s 2016 investigation of his campaign will not be issuing any public findings before the election…..”

    Can’t wait for Durham.

      1. Gainesville is Jan F. BTB and now Joe Friday with a lot of aliases in-between..

        It seems that you leftists need loads of aliases to cover your lies.

        Now Anonymous you can get one of your pretend friends to pat you on the back again.

        1. Allan complains about aliases in a thread with Art Deco x 3, who even numbers his aliases and went through over twenty variants of This is absurd. Since Allan calls him DSS, that likely refers to another name.

          I wonder what other aliases Allan uses. Rhodes comes across similarly.

          1. I’ve had to change my handle due to technical glitches in the site, knucklehead. I seem to be the only commenter who suffers this problem and I’m not sure why that is. I’d have happily used my original handle throughout. Doesn’t matter much. Everyone recognizes my voice immediately. I have never used ‘anonymous’.

            1. Nothing prevents you from reusing your old handle, knucklehead, and you may be lying about posting anonymously.

  14. Unlike some former nominees, she is no work in progress.

    Imagine how Klobuchar would react if her oncologist, cardiologist or infection disease physician approached her medical diagnosis as a physician specialist in progress. Today I am at Duke where no physician would be allowed to attend to a patient with a complex history and difficult presentation, as a doctor in progress. Chronic difficult cases require an experienced, seasoned professional with an impeccable pedigree. ABG has it all.

    Democrats are treating Judge ACB like a prop, reminiscent of another potted plant who objected. He also used a prop to state his case.

    JULY 9, 1987 | CLIP OF IRAN-CONTRA INVESTIGATION DAY 25

    Brendan Sullivan objects during the questioning of client Oliver North.

    https://www.c-span.org/video/?c4501895/user-clip-brendan-sullivan-potted-plant

  15. What she was saying is that I will ignore and destroy precedent I don’t like and worship that which I do. We all know what she means.

        1. great point lysias and keep on saying it

          btw did you guys know dred scott case has obiter dicta supporting an individual right to keep and bear arms?

          since that was not the holding, it was not overturned, but it shows the long held belief the 2d amendment does recognize and individual right

    1. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes….. Three generations of imbeciles are enough
      – Supreme Court Justice Oliver Wendell Holmes
      Buck v. Bell, 274 U.S. 200 (1927)

      https://supreme.justia.com/cases/federal/us/274/200/#207

      1. I know everyone wants me to react in horror at reading Buck V Bell but somehow it has never disturbed me much.

        Right now I see a lot of incompetent social parasites in the streets rioting and wonder

        1. Their parents can cut off the cash and the institutions of state can incarcerate them or subject them to the cane, birch, and pillory. They’ll think better of the rioting. Because Antifa is Democratic Party muscle, there will be no punishment.

          There’s no indication that their parents have low IQs, btw.

          1. Today at least, I am interested in a conversation about devolving the United States into smaller components. Then, we will peacefully transfer those parasites and unruly discontents who dislike law and order out of our midst, to the places that welcome them.

  16. I think Barrett has educated a few of the Democrats on the committee, if they take the time to listen to her. She is well reasoned and appears to follow both the Constitution and the statute.

    1. The last man in the Democratic Party to advocate formalism in constitutional interpretation was Raoul Berger. Democrats have no procedural principles. They just want what they want, and more often than not what they want is to abuse the opposition. Its the main reason we cannot live together anymore.

      1. Republicans have no procedural principles. They just want what they want, and more often than not what they want is to abuse the opposition. Its the main reason we cannot live together anymore.

        Fixed it for you.

        1. Actually the principle that is supposed to be used is adherence to the Constitution. I don’t see anything on the Republican side this moment that disagrees with that.

            1. Aninny:

              “The Republican Trump Admin isn’t adhering to the Constitution.”
              *********************
              Like that Lincoln canard dutifully re-lied by Kamala and Comb-eater! Hahahaha. Before you type, keep repeating to yourself that “This is a legal blog. People here know better.”

              1. mespo727272, like your friend Allan, insulting people and deflecting are among your go-to strategies.

                The Constitution requires the President “take Care that the Laws be faithfully executed.” Trump is not faithfully executing our laws and is not adhering to the Constitution. The Trump Admin has lost the vast majority of its federal cases, much worse than other recent presidents.

                You are unable to engage in a substantive discussion of the issue.

                1. “mespo727272, like your friend Allan, insulting people and deflecting are among your go-to strategies.”

                  Stop it Anonymous, you and your pretend anonymous friends along with all your names and icons have brought this blog to a new low.

                  You are at your best when your pretend friends are patting you on the back. That is when we hear civil conversation from your end. It’s laughable and pathetic but that is you.

                    1. That is not an insult. That is a comment stating how you and your pretend friends interact. It is pathetic but don’t worry you can immediately get one of the pretend friends to sympathize with you. You have loads of shoulders to cry on.

          1. The GOP completely and purposefully failed their duties in not advising and consenting on the Garland nomination. That is spelled out in the Constitution and is not optional. Their failure was a blatant and political dereliction of duty which resulted in the stealing of a SC seat from the majority of American voters who twice picked Obama and an awarding of the seat to a president who was rejected by a majority of most American voters.

              1. He almost certainly would have, which is why no hearing was held. The Senate had overwhelmingly confirmed him earlier for his appellate seat with praise from Republicans, and unlike Barrett , he was a moderate. He wasn’t the problem, keeping a seat from Obama – twice elected by a majority of American voters – was their problem.

            1. The GOP completely and purposefully failed their duties in not advising and consenting on the Garland nomination

              Gainesville, it doesn’t matter how many times you repeat a lie. It’s still a lie.

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