Democrats need to wage a battle to reject Kavanagh for the Supreme Court. However, they make a serious mistake to turn it into a Roe v. Wade battle. Roe v. Wade denied states the right to prevent abortions, although states retain the right to regulate them. Those states that would prevent abortions, but for Roe v. Wade have already regulated access to them so that women face inexorable obstacles in obtaining them. For example, 23 states have regulations that apply to sites where abortions are performed (such as the width of corridors), unnecessary licensing requirements for providers, or restrictive proximity to hospital requirements. Some of these regulations are being litigated and may come before the Supreme Court.
The repeal of Roe v. Wade or the state regulation of abortions to make them virtually impossible to obtain is almost certain to happen. And it is unlikely that Democrats can do anything to protect women’s rights to having this procedure performed. Even if Democrats can prevent Kavanaugh from being confirmed, Trump has a list of 25 or so Supreme Court candidates, vetted by the conservative Federalist Society, who all share the same views on women’s reproductive rights. Trump will simply submit the next name on the list and we can expect the same results. As is too often true of Democrats, we had our opportunity to effectively advocate for the issue but failed to do so. This fight is not the 2018 fight. If we wanted to protect the reproductive rights of women we should have done it in 2016.
The repeal of Roe v. Wade or the state regulation of abortions to make them virtually impossible to obtain is almost certain to happen. And it is unlikely that Democrats can do anything to protect women’s rights to having this procedure performed. Even if Democrats can prevent Kavanaugh from being confirmed, Trump has a list of 25 or so Supreme Court candidates, vetted by the conservative Federalist Society, who all share the same views on women’s reproductive rights. Trump will simply submit the next name on the list and we can expect the same results. As is too often true of Democrats, we had our opportunity to effectively advocate for the issue but failed to do so. This fight is not the 2018 fight. If we wanted to protect the reproductive rights of women we should have done it in 2016.
Now, we are engaged in a more important war. It started at least 30 years ago, but many of us did not discover that we were in a war and on the verge of defeat until 2016. As important as women’s reproductive rights are, Roe v. Wade is merely a battle in that much larger war. That war is for our democracy in which a minority is governing the U.S. against the values of the majority
We need to do everything we can to prevent Kavanaugh from being confirmed. Two issues are key in fighting against Kavanaugh’s confirmation. First, Trump should not be permitted to name a Supreme Court justice any judge, who like Kavanaugh who has argued that Presidents should not be subject to criminal investigations. Trump is, of course, the subject of a criminal investigation. Letting him name someone like Kavanaugh is tantamount to giving him a get out of jail free card, a card to say the President is not subject to U.S. laws. Because there have only been two Presidential impeachments in the House of Representatives (and no convictions in the Senate), there are many unsettled questions that the Supreme Court will have to rule on. For example, can a President pardon himself, can a President be indicted, can a President pardon a co-conspirator, can a President be subpoenaed, are all questions that will quite probably have to be decided by the Supreme Court.
Second, Trump should not be permitted to name a Supreme Court justice whose previous decisions have suggested hostility to the Affordable Care Act (Obamacare) or government subsidized and regulated healthcare. A coalition of 20 states have filed another suit to have the ACA overturned. Trump should not be permitted be permitted to name a Justice who has openly shown hostility to government healthcare. Trump should not be permitted to stack the Court against the Affordable Care Act (ACA). Eliminating the ACA would result in millions of people losing insurance that would cover serious illnesses. In addition, dismantling the ACA would allow insurance companies to refuse or cancel policies because of preexisting conditions. The confirmation of Judge Kavanaugh should not allow the Supreme Court to eliminate the ACA when the Congress has been unwilling to do it.
Both the issue of a President being covered by the law, and that of the protection of the ACA offer Democrats more strategic advantages than focusing on Roe v. Wade. First, Federalist candidates for the Supreme Court have been well-schooled in avoiding any Roe v. Wade trip wires. These candidates have learned to say something like they do not believe in overturning well-established law. Of course, this truism does not mean they won’t overturn Roe. But it does mean that Senators who want to vote for them have some fig leaf to cover their decision. For example, Susan Collins has pledged not to vote for any candidate who does not show Roe v. Wade the deference it deserves. Citing the meme about respecting well-established law gives the “okie doke” to Senators like Collins.
Concern about either giving Trump cover from a criminal investigation or effectively ending insurance coverage for millions of Americans, might provide some Senators with enough of a rationale to reject Kavanaugh. Senator Joe Manchin of West Virginia, a Democrat who voted to confirm Republican Justice Neil Gorsuch, has said that he could not confirm a candidate whom he thought would eliminate healthcare. Democrats have a better chance of defeating Kavanaugh for his opposition to investigating Presidents and eliminating healthcare than for opposing Roe v. Wade.
If Democrats can keep Kavanaugh from being confirmed, it will help energize Democrats and provide another issue for 2020: re-balancing the Supreme Court.
When the Supreme Court was first formed there were six justices on the Supreme Court. And when Hillary Clinton was expected to win the 2016 election, Senate Majority leader Mitch McConnell pledged to prevent her from appointing a ninth justice. With six conservatives on the Supreme Court, the only way for Democrats to re-balance the Court is by passing legislation to reform the federal judiciary by adding at least two more justices to the Court. To pass this reform legislation, Democrats must be in the majority in the House and Senate, and a Democrat must be in the White House to sign the legislation.
The Democrats are engaged in a war against a minority who show increasing adherence to a deviant philosophy. Preventing that minority from retaining power and governing the U.S. against the values of the majority, will require a long-term strategy. We can no longer focus on short-term tactics that permit Democrats to alternate winning at least one branch of Congress every four years and the White House every eight years.
In 2018, we have a war to fight. Roe v Wade is an important battle in that war, but it is a battle we cannot win now. Now it is more important that we protect our democracy, so that we can not only ensure that if Roe v. Wade is overturned directly or overturned indirectly through state regulations, we can restore it. But first our democracy must be restored.
We need to do everything we can to prevent Kavanaugh from being confirmed. Two issues are key in fighting against Kavanaugh’s confirmation. First, Trump should not be permitted to name a Supreme Court justice any judge, who like Kavanaugh who has argued that Presidents should not be subject to criminal investigations. Trump is, of course, the subject of a criminal investigation. Letting him name someone like Kavanaugh is tantamount to giving him a get out of jail free card, a card to say the President is not subject to U.S. laws. Because there have only been two Presidential impeachments in the House of Representatives (and no convictions in the Senate), there are many unsettled questions that the Supreme Court will have to rule on. For example, can a President pardon himself, can a President be indicted, can a President pardon a co-conspirator, can a President be subpoenaed, are all questions that will quite probably have to be decided by the Supreme Court.
Second, Trump should not be permitted to name a Supreme Court justice whose previous decisions have suggested hostility to the Affordable Care Act (Obamacare) or government subsidized and regulated healthcare. A coalition of 20 states have filed another suit to have the ACA overturned. Trump should not be permitted be permitted to name a Justice who has openly shown hostility to government healthcare. Trump should not be permitted to stack the Court against the Affordable Care Act (ACA). Eliminating the ACA would result in millions of people losing insurance that would cover serious illnesses. In addition, dismantling the ACA would allow insurance companies to refuse or cancel policies because of preexisting conditions. The confirmation of Judge Kavanaugh should not allow the Supreme Court to eliminate the ACA when the Congress has been unwilling to do it.
Both the issue of a President being covered by the law, and that of the protection of the ACA offer Democrats more strategic advantages than focusing on Roe v. Wade. First, Federalist candidates for the Supreme Court have been well-schooled in avoiding any Roe v. Wade trip wires. These candidates have learned to say something like they do not believe in overturning well-established law. Of course, this truism does not mean they won’t overturn Roe. But it does mean that Senators who want to vote for them have some fig leaf to cover their decision. For example, Susan Collins has pledged not to vote for any candidate who does not show Roe v. Wade the deference it deserves. Citing the meme about respecting well-established law gives the “okie doke” to Senators like Collins.
Concern about either giving Trump cover from a criminal investigation or effectively ending insurance coverage for millions of Americans, might provide some Senators with enough of a rationale to reject Kavanaugh. Senator Joe Manchin of West Virginia, a Democrat who voted to confirm Republican Justice Neil Gorsuch, has said that he could not confirm a candidate whom he thought would eliminate healthcare. Democrats have a better chance of defeating Kavanaugh for his opposition to investigating Presidents and eliminating healthcare than for opposing Roe v. Wade.
If Democrats can keep Kavanaugh from being confirmed, it will help energize Democrats and provide another issue for 2020: re-balancing the Supreme Court.
When the Supreme Court was first formed there were six justices on the Supreme Court. And when Hillary Clinton was expected to win the 2016 election, Senate Majority leader Mitch McConnell pledged to prevent her from appointing a ninth justice. With six conservatives on the Supreme Court, the only way for Democrats to re-balance the Court is by passing legislation to reform the federal judiciary by adding at least two more justices to the Court. To pass this reform legislation, Democrats must be in the majority in the House and Senate, and a Democrat must be in the White House to sign the legislation.
The Democrats are engaged in a war against a minority who show increasing adherence to a deviant philosophy. Preventing that minority from retaining power and governing the U.S. against the values of the majority, will require a long-term strategy. We can no longer focus on short-term tactics that permit Democrats to alternate winning at least one branch of Congress every four years and the White House every eight years.
In 2018, we have a war to fight. Roe v Wade is an important battle in that war, but it is a battle we cannot win now. Now it is more important that we protect our democracy, so that we can not only ensure that if Roe v. Wade is overturned directly or overturned indirectly through state regulations, we can restore it. But first our democracy must be restored.
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