JUSTICE O'CONNOR'S RETIREMENT & THE COMING FIGHT


"We have come to it at last . . . the great battle of our time."

Here's the story.

In the last couple hours, I've received something like 20 mass emails from the various organizations for which I have signed up. A veritable who's-who of the online progressive presence.

The Christitarian right thinks, no doubt, that this is their Big Chance to overturn Roe. Until Bush announces a new nominee, this is quite the coathanger. Er, I mean cliffhanger.

Surely they haven't forgotten that Bush devoted a lot of breath in the 2004 campaign to the culture war wedge issues they love so -- opposition to abortion, the 'sanctity' of marriage, etc. They've also noticed that since election day, Bush has all but forgotten these issues, in favor of Social Security and taxes, Schiavo-esque distractions notwithstanding. If Bush nominates a center-right clone of Justice Kennedy, or O'Connor for that matter, will there be a backlash from the fundy right? Hmm, after reading Tom Frank's book, I'm not sure. But there will be considerable pressure on him to get another Scalia in there.

But those emails got me thinking. A majority of Americans support the continued legality of abortion. For the last couple of decades, that majority has been complacent, mostly because over that period of time reproductive choice has had multiple layers of defense, from Democratic Congresses to a Presidential veto to a majority on the Supreme Court. With O'Connor's retirement, we may soon see a reality in which none of those layers are in place. If Bush nominates an anti-Roe judge, could it awaken a public-opinion sleeping giant?

It would sure put moderate Republicans in a tough position. Not that Bush gives a shit about them.

Here's something else to consider about the culture warriors on the right. The struggle of the culture war right isn't about winning, it's about losing. They prefer choosing the battles that allow them to claim victimhood at the hands of a shadowy liberal intellectual elite who pull America's strings and bring us closer to Gomorrah. The culture war has never been about triumph, it has always been about misery: Misery for the fundy right and its foot soldiers who believe that all high-level decisions are really made by atheist professors and effete intellectuals who only incur God's wrath even further, and misery for the left who worry that the progress train could at anytime be hijacked and put in reverse.

(Important note: There is a distinction among the culture warriors between the politician/media warriors and the lay warriors. Most of the former group are primarily interested in political gain for the Republican Party and will manipulate the (usually) more genuinely-felt beliefs of the latter group to that end.)

Remember, the rhetoric that opponents of abortion rights have employed is that abortion is "murder". We hear about the "slaughter" of "millions of innocent babies". Even "genocide" is thrown around from time to time. But the actions of the elected Republicans who oppose abortion rights over the past couple decades have amounted to little more than "milking" the issue, stretching it out as far as possible, without a definitive result, for the sole purpose of electoral gain.

With O'Connor's retirement, we have reached what some opponents of choice may see as a critical mass moment, their best chance in a generation to end abortion as we know it in America. The Democrats had a similar moment in 1993-94, and President Clinton used it to try to get a universal health insurance program passed. The effort failed miserably. Republicans remember this, and given that a strong majority of Americans support abortion rights, and that some in their own ranks are not as anti-abortion as others, they don't want to risk a 1994-style reprisal at the polls.

Which brings us to President Bush. My guess is that he'll nominate someone further to the right of O'Connor, an opponent of abortion rights, someone objectionable enough to Democrats that he/she would warrant a filibuster. It's the only solution that allows Bush to appear genuine in his opposition to abortion rights, while also continuing to "milk" the issue, in a critical mass situation. (a scenario like this isn't terribly preposterous)

Furthermore, if Bush gets an anti-Roe nominee confirmed, it means that the Democrats will have laid down, and Bush will have some measure of bipartisan cover. On the other hand, in spite of such cover, it wouldn't last; the confirmation of an anti-abortion nominee, and the following possible court decision ending a constitutional right to abortion -- which could occur in June 2006 in such a scenario -- could very well set the table for a 1994-style backlash at the polls in the midterm elections. It could put moderate, pro-choice Republicans like Pataki, Giuliani and even Ahhnuld in a very sticky position, particularly given the gubernatorial elections in CA and NY in 2006.

The abolishing of abortion in America would make things very uncomfortable for the Republican Party. There is a silent majority in favor of choice, a sleeping giant that does not know its own strength. It may soon find out.

In the meantime, perhaps Dubya will see if Senate Dems are willing to endorse private accounts in exchange for a centrist nominee.

I'm joking. At least I hope so.

UPDATE: Jack Agrees that the impending confirmation of Sandra's replacement will be brutal.