It is true that both Breyer and Ginsburg were confirmed easily. But later in Clinton's term, the Republicans tried virtually every parliamentary maneuver in the book to hold up or kill Clinton's appellate and district court nominees.

In any event, there are basic points of view about rights in America that ought not be seen as up for grabs, subject to further debate. One such issue is choice.




What a completely ridiculous statement. Abortion is a fundamental right? So the 30-40% of Americans who think it's morally wrong should just be told to kiss off?




How indicative of how out of touch many Democrats are with mainstream American values that abortion is held to be a right on a par with freedom of speech or religion.




The term "fundamental right" should be reserved only for those rights specifically mentioned in the Constitution or else held as such as universal value that it becomes part of the very fabric of the culture, such as the right not to be discriminated against on the basis of race or gender. Abortion doesn't come any where near to meeting that test. And by insisting that it is fundamental, inviolable and unchangeable, as opposed to perhaps the lesser of two evils subject to a fairly high level of scrutiny, Democrats needlessly alienate many, even some who are themselves pro-choice.

You make an excellent point on the choice issue, but the problem that alot of Dems have when discussing the courts is they say things like "the courts ended descrimination." Actually the Constitution was ammended, thereby guaranteeing those rights to all citizens. All the court did in "Brown v. BoE" (not that it was a small thing in the least) was enforce the 14th ammendment. They didn't find some hidden right or apply a "cultural" test, they applied the law. That is the role of the court.

I think the fundamental right of American patriots not to be polite to hypocritical right wingnuts who hold your point of view is one that we have failed to exercise enough. Given the fact that the National Review was making your exact same argument 40 years ago about the radical idea of abolishing whites only accomodation and poll taxes, the smell of confederate-facism is all to apparent in your words.

Here's my considered opinion. The lust of mean-spirited and ignorant freedom haters to have the police impose their horrible and anti-human so-called morality on the citizenry is indecent and unacceptable. Your contempt for the fundamental notions of individual freedom and the enlightenment ideals on which this nation were founded, and your complete rejection of the shared basis of morality that can be found in, among other places, the Christian Bible, are despicable and dangerous.  

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

So this is not only an issue of a fundamental right. It is an issue of balance. The decision speaks of abortion being legal only in the first trimester and then it becomes more and more difficult as the pregnancy continues, more an issue of the health of the mother being threatened by the pregnancy continuing. It is definitely, however, also an issue of the fundamental right of privacy.




You make some excellent points. To which I would respond as follows:




The fundamental right involved may be one of privacy, as Justice Blackmun wrote, but the point of contention is whether that right of privacy EXTENDS to abortion, as Reed Hundt seems to imply. Does a fundamental right to privacy mean a fundamental right to abortion?




Justice Blackmun sought to essentially come up with a formula that determines when the right to terminate a pregnancy is "qualified" and when it isn't. Given that he deems such a test necessary, can't we infer that this right is in fact NOT "fundamental" at all, but rather derived from a more fundamental right and thus subject to a higher level of scrutiny? While no right is absolute, surely "fundamental" rights are subject to a much lower level of scrutiny than Justice Blackmun's formula would seem to imply.




As for the second issue, speaking of the "30-40%" of people who believe that abortion is morally wrong being told to "piss off," I don't believe that is a valid argument. A far greater percentage of Americans felt the same way about slavery and segregation. I am not trying to equate the two, just making the point that morality cannot be legislated in this way with certainty.




The difference between slavery and segregation and abortion is that slavery and segregation were outlawed through the democratic process in the passage of the 13th and 14th amendments during Reconstruction. While of course it took 100 years to be fully implemented, the legal foundations were clear from the beginning. The language of the 14th amendment in particular in the Equal Protection clause is pretty clear. It has been a case of society and public opinion catching up to the law.




There is no constitutional amendment or federal statute establishing a right to terminate a pregnancy, so there is no democratic legal foundation against which to look at public opinion. My argument is that in this circumstance, where there are two competing moral claims, public opinion matters very much as there is no preexisting law to guide us. This is one reason why I actually agree with those conservatives who argue that abortion is an issue that should be settled through the democratic process, a fight the forces for choice would surely win.

You're nowhere near cynical enough to stomach the horror that is politics.  Let me just say if I finished 1st in my class at Harvard and was working in the White House Counsels Office, while I've still got 6 digits in student loan debt, I know I'd likely be up for appointment to a federal court someday, and would do a few cases for the other side to show some balance, so I can play the open-minded card in my confirmation hearings.  Suggesting that he's a moderate, because he has a few cases under his belt fighting against his traditional clients, is as disingenuous as suggesting a bill that passes with 3 Democratic votes is "bi-partisan"

Maybe he is a hired gun, but his ideological persuasion should not be in doubt, and anyone who has read 1/10th of the PFAW review would know that.  The guy was Ken Starr's chief political deputy for goodness-sake!!!

OK fine. Both parties are equally guilty of using whatever power they have to block as many of the other party's nominees as they can get away with.

Bull. Hatch cut a deal on Ginsburg that other Republicans agreed to. If Republicans didn't want to play later on, that's their decision. but don't even pretend it was reasonable, or that the Bush administration has offered Democrats anything remotely like a compromise.

The fundamental right involved may be one of privacy, as Justice Blackmun wrote, but the point of contention is whether that right of privacy EXTENDS to abortion, as Reed Hundt seems to imply. Does a fundamental right to privacy mean a fundamental right to abortion?

You also bring up some very good points, and I hope I can respond intelligently to them, as this is such a difficult subject Again, I think Blackmun was speaking about a balance, but he surely was referring to a woman's right to privacy in this issue. I don't think that can be parsed out of the opinion.
Justice Blackmun sought to essentially come up with a formula that determines when the right to terminate a pregnancy is "qualified" and when it isn't. Given that he deems such a test necessary, can't we infer that this right is in fact NOT "fundamental" at all, but rather derived from a more fundamental right and thus subject to a higher level of scrutiny? While no right is absolute, surely "fundamental" rights are subject to a much lower level of scrutiny than Justice Blackmun's formula would seem to imply.
The higher level of scrutiny you refer to is in the opinion and in the law. It speaks of the fact that the farther along in the pregnancy a woman is, the more scrutiny is the choice for abortion must have. Again, I do not think it is so easy to separate the fundamental right of privacy from the right to abortion delineated in this decision.
There is no constitutional amendment or federal statute establishing a right to terminate a pregnancy, so there is no democratic legal foundation against which to look at public opinion. My argument is that in this circumstance, where there are two competing moral claims, public opinion matters very much as there is no preexisting law to guide us. This is one reason why I actually agree with those conservatives who argue that abortion is an issue that should be settled through the democratic process, a fight the forces for choice would surely win.
You make a good point here, but as Roe v. Wade is already established, I don't see why there would be a need for it to be legislated as well. I disagree that public opinion on this issue matters, which again would speak to legislating abortion through the Congress and Senate as a woman's right. I see no advantage to it and in the present political climate there is no guarantee that "the forces for choice would surely win." Your assertion that "there are two competing moral claims" is of course your opinion. I don't see it that way. I don't believe the state has a moral "claim" via legislation on the rights granted by Blackmun's opinion.

"What a completely ridiculous statement. Abortion is a fundamental right? So the 30-40% of Americans who think it's morally wrong should just be told to kiss off? "

I think this is where Democrats go very wrong.  By being seen as celebrating abortion as right instead of tolerating it as an unfortunate procedure that should remain legal, they alienate many people who are not willing the make abortion illegal but think it is wrong.

Bill Clinton understood this when he said "safe, legal, and rare"

Those who think

I guess I'm just confused about your definition of a "fundamental" right. How can the State have the authority to regulate the "Right of the people to keep and bear arms..." (which happens to be a right specifically enumerated in the Constitution), but doesn't have that same authority when it comes to the "fundamental privay/reproductive rights" (that can only be found by arranging the words in the 4th 5th and 14th ammendments in a different order)?