The Supreme Court Hullabaloo

So last week Sandra Day O'Connor resigned from the Supreme Court. Furthermore, in a few days we should see the resignation of thyroid cancer-striken Chief Justice William Rehnquist. The media machine has already amped up over the prospect of covering a Senate confirmation battle over whoever Bush chooses to nominate. Liberal PACs like Moveon.org have taken a few moments from re-tiling their pools with "Bush Lied" bumper stickers to organize massive house parties in preparation to fight whoever the nominees are. Me, on the other hand, I don't know what the fuss is about.

Let's break it down.

Rehnquist was appointed to the Supreme Court by Richard Nixon, who if you flunked American History, was a Republican. He is widely and correctly viewed as a conservative justice, but even his opponents recognize he is much more moderate than Republicans had hoped (the link will take you to quotes from Senator Charles Schumer, D-NY, who is a member of the Senate Judiciary Committee that will oversee the confirmation battle). Therefore, the Republicans will either appoint a new Rehnquist, or someone less so. It is doubtful that Democrats would let a more conservative nominee slip through without literally burning DC to the ground.

And O'Connor...she's a Reagan appointee, and also recognized as a moderate. However, this impression is usually incorrect. She is called a moderate due to her "stance on abortion." However, what that label fails to take into consideration is that O'Connor, while the author of the "undue burden" standard enunciated in Planned Parenthood of Pennsylvania v. Casey," actually has weakened Roe v. Wade far more than liberals recognize. The undue burden standard basically says that States can regulate abortion as much as they want so long as it does not place an "undue burden" in the path of a woman's decision to have an abortion. Her own opinions, however, have found the following laws to NOT pose an undue burden on a woman's right to choose:

- 24 hr waiting periods
- parental consent for minors
- refusal to allow abortion in hospitals that receive public funds (which are virtually all nowadays)
- refusal to fund abortions using public expenditures
- ban on partial birth abortions
- ban on all abortions past the second trimester where the health of the mother is not at risk

THIS is a moderate to liberals? Every single one of the things O'Connor has allowed with her "undue burden" standard are the very things that organizations like NOW campaign for openly. Outside of abortion, O'Connor usually sides with the Scalias and Thomases of the Court anyway. But abortion is pretty much the only issue most people seem to care about when it comes to the Supreme Court, which is why decisions handed down by the liberal members of the Court allowing the government to take your land slip by with barely an op-ed piece written about them.

So this is basically what all the fuss breaks down to: Liberals are worried that 2 conservative, Republican-appointed justices are going to be replaced by 2 conservative, Republican-appointed justices...and thus affecting the balance of the Court?? When Blackmun resigned from the Court in the early 90s, and Clinton replaced him with Ruth Bader Ginsburg, I don't recall a similar fuss. The truth is, what liberals are worried about is abortion, abortion, abortion. They were cool with Sandra's swing vote status (except when that "moderate voice" they all praise voted for Dubya in Bush v. Gore) because she didn't bar outright a woman's right to choose. Bush's nominees, they insist, would completely overturn Roe. Well, they're right..they could. However, what virtually everyone in the abortion debate fails to mention is the following.

- from a legal standpoint, Roe v. Wade is no longer "good law" anyway. The case laid out a "trimester framework" for when states could regulate abortion. That framework has since been thrown out in favor of the aforementioned "undue burden" standard.
- If Roe v. Wade or Casey was overturned, it would do nothing more than put regulation of abortion back in the hands of the states. THAT'S ALL. And trust me, plenty of states would keep it legal, and even the reddest of red states would have health-of-the-mother provisions. So let's cut the BS about the Supreme Court having the power to outlaw or legalize abortion nation-wide. It's just never been true.

The real question that needs answering, in my mind, however, is this one: what the $%&* is a "hullabaloo?"