Captain Hindsight: Roe v Wade Edition
Captain Hindsight: Roe v Wade Edition
Three things that could have tipped the balance of the Supreme Court and avoided where we're at today.
Captain Hindsight is one of my favorite South Park superheroes. His superpower is ludicrous: He has the ability to see what should have been done differently after the fact. In other words he has ‘20/20 hindsight’.
Some degree of this can be useful, but it’s far from anything remotely ‘super’ (the man can also fly but this power is overlooked for the most part by his adoring fans). In reality, hindsight is useful if we can glean the proper lessons from something. But of course, the lessons we learn are always debatable and people rarely agree on them. We can ‘learn from our mistakes’ or ‘from history’ but what we learn is often different from what others learn.
For example: Lots of people angry about Roe v Wade are saying things like “see you deplorable Bernie Bros and Green Party shitheads, if you’d voted for Hillary this never would have happened.”
Okay, but here’s a counterpoint: If Democrats had nominated a more palatable nominee—literally just about any other candidate—they would have beat Donald Trump. Trump was not very popular when he ran in 2016. Clearly Republican voters liked how he talked so much shit about the other candidates (and it was very funny) but moderates and independents didn’t love Trump.
Trump won the electoral college by carrying Florida, Michigan, Pennsylvania and Wisconsin. While Florida has swung back and forth over time, the other three states in this group have voted predominantly blue pretty much forever (at least in national elections). The last time a Republican carried the state of Pennsylvania was George H.W. Bush in 1988—and in 2020 PA voters chose Joe Biden. Did Pennsylvania go red in 2016 because voters there really, really loved Donald Trump? Or did they just really, really dislike Hillary Clinton?
I think the latter is more likely. HRC’s campaign took the Rust Belt for granted. She focused on states like Ohio and North Carolina (which she also lost) and neglected Wisconsin, Michigan, Pennsylvania and Minnesota and she needed to win in these states to win the election. Just about any other Democratic candidate could have won these states but Clinton chased away moderate voters and independents even faster than Trump did somehow. She was a bad and divisive candidate that many left-leaning voters mistrusted. Her most vocal supporters did their level best to alienate and ostracize anyone who didn’t toe the line (inventing the whole Bernie Bro bullshit) and her campaign slogan was “I’m With Her” which is something you say when you’re trying to get into a fancy nightclub and your girlfriend is super hot or famous or something and you’re just average at best. Also, like, who the hell are you with Hillary? Is there someone standing on your left that you’re with as the arrow suggests?
Trump wanted to Make America Great Again and Hillary’s response was a tepid “I’m with her.” Oh fuck off.
Seriously, the fact that Roe v Wade has been overturned isn’t because some Bernie Bros didn’t vote for her (I voted for her, holding my nose, primarily because of my concerns over the Supreme Court) but because she was the nominee to begin with. If Bernie Sanders had been elected president he would have nominated liberal justices to the courts just the same as Hillary Clinton.
Also, Hillary lost in 2008 when she went up against Obama and many of the inter-party hostilities that played out in 2016 were born at this time, with angry Hillary supporters accusing Obama supporters of similar things that they accused Bernie supporters of. Lots of unpleasantness. But regardless of all that, Hillary had already proved that she was—despite her experience in politics and connection to Bill—a loser. A sore loser. A rich, famous, wildly unpopular loser that voters on both sides of the aisle mistrusted. She was married to Bill Clinton whose own popularity has faded considerably over the years. The Clintons have connections to deeply unsavory people (including Jeffrey Epstein and Donald Trump) and while I’m sure some of the conspiracy theories are totally unhinged, there are plenty of legitimate reasons to think that she’s a bad choice, that political dynasties suck (whether that’s a Clinton or a Bush) and that someone like Hillary represents the lobbyist-infested status quo.
So no, I don’t believe that we can lay the blame of the current Roe v Wade at anti-Hillary voters who couldn’t stomach voting for someone they consider little better than a Republican.
I think there are two other factors that should also be considered here. Maybe three if you believe that both the Supreme Court and the House of Representatives ought to have more members on it as the population of the United States has grown, but we’ll leave that aside for now.
First, Obama should have just flipped the GOP the bird and put Merrick Garland on the Supreme Court using whatever fuckery he could cook up. The Republicans never would have let the Democrats pull that dirty nonsense with them if they’d been in charge. The GOP telling Obama that with a year left in his presidency he wasn’t allowed to seat a Supreme Court Justice was overt bullshit and he should have responded by telling them to go suck it. Again, this is what the GOP would do and the Democrats would meekly let it happen. I can’t imagine a scenario in which Democrats prevent a sitting Republican president from seating a SCOTUS nominee on the grounds that he only has a year left in his presidency. (Obviously Democrats have tried to stop Republican nominees, including the dread pirate Clarence Thomas, but not for this flimsy a reason).
Second, and I know some people will be Very Angry to hear me say this, but Ruth Bader Ginsburg should have retired during Obama’s presidency. RBG, may she RIP, was 87 when she died. She could have retired at the ripe old age of 80 or 82 or something and would have served a long and respectable career as a progressive Justice. And a young progressive Justice could have replaced her with decades ahead of them—rather than Amy Coney Barrett who is just 50 years old and could serve as a conservative Justice for the next 40 years.
A Democratic president was not a shoe-in in 2016. I’m sorry, it doesn’t take a political genius to know that political tides shift and change rapidly. Obama was very popular but by the time he began his second term, Ginsburg should have realized that retirement was in the best interest of the nation. Conservative swing-voter Anthony Kennedy was 81 when he retired smackdab in the middle of the Trump presidency. He could have held out to see if Trump won again but he didn’t and because of this, and RGB’s refusal to retire sooner, Trump was able to put two conservative judges on the court. (Trump’s first court nominee was Neil Gorsuch after the death of Antonin Scalia, a seat that should have been filled by Merrick Garland).
Had RBG retired and Obama forced Garland’s nomination, even if Hillary had run and lost and Trump become president, he would have only been able to get one of his three justices into the Supreme Court. The current court would include the three liberal justices we have now plus two more Obama picks. It would be a 5-4 left-leaning SCOTUS well into the foreseeable future. If just RBG had resigned and nothing else changed, the court would be 5-4 right-leaning with Chief Justice John Roberts the swing vote. I’m not sure if that would have changed the Roe v Wade outcome or not (i.e. would Roberts have voted differently if his vote had actually mattered, which it didn’t in this case of a 6-3 conservative court).
In any case, I’ve rambled on long enough. My point is, Democrats need to think more about politics and the ramifications of their choices. They need to stop playing so nice with Republicans when Republicans are more than willing to resort to whatever shenanigans they require to get their way. A great deal is at stake, obviously, and now we have a very young conservative SCOTUS to contend with well into the future. I prefer a balanced court, personally, whichever way it leans. 5-4 with a swing vote is the way to go, and we had that for a good long time in this country.
Tell me why I’m wrong in the comments and thanks for reading and subscribing!
Image via South Park Studios.
Great over all article Erik. I’m going to address your points in order of strength.
On RBG you’re simply correct. She should have retired under Obama and been replaced. Alas, the cult of personality that sprang up around her, the fact that being a Supreme Court Justice is a very fun job and the fact that liberal justices are simply not as driven and focused on goals as Conservative justices are (though now, in the post Roe era perhaps that shall change) combined to make her simply unwilling to retire. RBG hoped she could be replaced by the first Woman President and also get in a bunch of additional years in the limelight. It simply was not to be.
Garland is an interesting but, I suspect, a weaker case. I feel like saying “constitutional crisis” might be over stating it but a President saying “Garland is the Justice now, screw what the Senate says” would have arguably have precipitated one. It would have ended up in front of an even numbered Supreme Court with 4 Liberals and 4 Conservatives. Assuming the court cases would have moved at the normal court speeds then Hillary would have lost and, likely, the new Trump administration would have declared the matter moot by nominating his own candidate and having it confirmed by the Senate.
The ”Hillary should never have been nominated” hindsight cases is weaker but in an odd way. I think that it is indeed likely that a non-Hillary candidate might have won against Trump but with two caveats. Caveat A: the next most likely candidate after HRC, Bernie, would have lost against Trump even worse that Hillary would have. Caveat B: It would have been astronomically difficult to prevent HRC from winning the Democratic nomination. This is not because of some nefarious plot but because of brutal political logistics. It is easy to forget, now, in the bleak light of her astronomical failure against Trump but HRC was viewed extremely positively within the party during the run up to 2016. From a Democratic Party perspective HRC had been a loyal soldier for decades. In 2008 when she lost the nomination the Clintons fell into line and pulled for Obama dutifully. You may recall how wistfully the GOP at that time hyped the PUMA (Party Unity My Ass) line. The Clintons could have tried spoiling things- they didn’t. Then she served in Obama’s administration while the Clintons generally traversed the party fundraising and campaigning for Democrats for eight years and racking up favors. This included a master class performance by Bill Clinton at the Democratic convention in 2012 where he utterly eviscerated Mitt Romney while at the GOP convention Clint Eastwood was yelling at a chair. A grateful Obama and Democratic Party leadership took note. In the run up to 2016 Hillary put all these favors and good will to work effectively clearing the Democratic nomination field for herself- only the irascible Bernie mounted any serious challenge. Those political actors who didn’t feel grateful or kindly towards HRC still chose not to run out of fear of being run over by the political juggernaut that she had assembled. It was easily the strangest nomination contest of the modern Democratic era.
A time traveler wanting to prevent HRC for taking that nod would have a serious challenge confronting them- how would one go about doing so? Each step the Clintons took towards 2016 was incremental and unobjectionable. Do you teleport to 2008 and demand a fresh minted Candidate Obama spurn HRC and look like a sore winner? Obama would refuse and for good reason- why enrage women voters and risk splitting his coalition after a long and hard fought nomination contest? Do you run around from 08-12 and demand the Clintons be treated as pariahs? Why on earth would any Democratic Party actors agree to spurn a popular (within the left) and capable political couple with clout and fund raising chops? They wouldn’t do such a thing. Do you teleport to ’12 and insist Clinton be frozen out of the Democratic Party convention? Again, why would anyone accede to this? HRC had, at this point, served honorably as Secretary of State and Bill was a known epic political performer. You don’t bench assets like that in national contests “because I don’t want to be grateful to them”.
I agree, in hindsight, that nominating Hillary Clinton in ’16 was an error. What I do not see, however, is how one would prosecute preventing it. HRC’s nomination in ’16 was a feat of political logistics like I have never seen or read about before. She cashed in a lifetimes’ worth of political favors to accomplish this nomination feat. Now, as a disgraced losing has-been her name is understandably mud and she is finished in politics so it’s easy to forget just how formidable she was within the Democratic Party during the nomination fight leading up to ’16.
Good stuff. I'd add two other things...
1. The only reason The Donald got to the point where ANY Democratic candidate had to worry about him was that Republican national leaders, the people Trump needed to best before he could face Hillary or whomever, were such loathsome phonies that when Trump dialed the "Maverick Outsider" knob to 11 and went after them, he energized the Right in ways no Bush, Romney, etc ever could.
Had there been even one Republican of substance not afraid to punch back equally hard, who understand that Trump had completely thrown out the Respectable Politics rulebook, he or she could have shut Trump down in the primaries.
But there wasn't, because they were all jokes. Everyone knew it, you knew it, my cat knew it.
And when nominee Trump seized the moment(um) by then going right-between-the-eyes against the MSM, the Republican base just caught fire. "Finally," they thought, "someone who actually fights back against the necrotic DC political-media Establishment. Yeah, he's a psycho but... fuck it, sign me up."
But it was the Republican elite who enabled this. Decades of incestuous, hypocritical panderers and liars in their leadership paved the way for Trump.
2. Roe v Wade was never going to be secure because the underlying moral and philosophical issues it skirted (yes, skirted) never went away.
The heart of the matter is not "choice" but WHAT is being chosen. If you believe that personhood and protection from wrongful harm should apply before birth, at some point during fetal development, then you can't just accept "it's a private decision between a woman and her doctor" and all the rest of the rhetoric.
Note that Roe itself acknowledged this and did not mandate unrestricted access to abortions at any point in a pregnancy.
Even so, multitudes of Americans, not just Rightist ideologues, still think Roe went too far. They vote, run for office, go to law school, become judges, etc.
A serious challenge to Roe was coming. Casey (1992) kicked that can down the road, but even then four justices went on record that Roe should be overturned.
So... yeah, this day or something like it was inevitable. *Thanos snap*