2 September 2021 — 2127 mdt
Two women — Ruth Bader Ginsburg and Hillary Clinton —
are primarily responsible for the demise of Roe v. Wade
First, a summary of what happened yesterday. Then why Ginsburg and Hillary bear considerable responsibility for the awful outcome.
Summary
Yesterday, by a 5–4 vote, the U.S. Supreme Court refused to enjoin Texas from enforcing what ought to be called the Lone Start Vigilante Enforced Anti-Abortion Act of 2021. Steamrollered through the Texas legislature, the act, contrary to Roe v. Wade, bans abortions after six weeks and delegates its enforcement not to government officials but to citizens, who may sue anyone associated with a post six weeks abortion for $10,000. For additional information, visit the Texas Tribune.
The dangerous Fifth Circuit Court of Appeals ordered a federal district court not to hold a hearing on the act. SCOTUS justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett upheld the Fifth’s outrageous decision. Chief Justice Roberts, and Justices Breyer, Sotomayer, and Kagan dissented, the latter three with memorable pith.
Roberts’ dissent addressed the heart of the procedural issue:
The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.
We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these.
I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.
Look for opponents of the law to now create circumstances leading to a test case of the law, probably in state court.
Why Ruth and Hillary bear heavy responsibility for this situation
Ginsburg. After Obama was re-elected in 2012, there was a narrow window during which Ginsburg, then in her seventies and a cancer survivor, could have retired and been replaced by a liberal leaning justice who would have upheld Roe. But, having so much fun as a justice, and deluded that (a) she would live forever, and (b) Hillary would be the next president, she stayed on the court. Wrong about Hillary’s winning the presidency, Ginsburg, now in her eighties, tried to outlive Trump. She didn’t. After dying last fall, she was replaced by hard core anti-abortionist Amy Coney Barrett. Without Barrett, yesterday’s vote would have been 5–4 to enjoin enforcement of the Texas law. Pro-choice women now will pay the price of Ginsburg’s selfishness.
This description of Ginsburg’s mistake infuriates many who adore Ginsburg. I deeply admired Ginsburg. But my admiration for her does not blind me to the consequence of her hubris.
Hillary. Perhaps no Democrat could have won the 2016 presidential election. Since the 22nd Amendment limiting presidents to two terms was ratified in 1951, only once has a political party held the White House for three consecutive terms: Republicans Ronald Reagan, 1981–1989, and his vice president, George H.W. Bush, 1989–1993. As Gary Wills remarked in A Necessary Evil: A History of American Distrust of Government, many Americans as a matter of principle believe the party holding the White House should be changed every two terms regardless of the merits of the candidates. That attitude put the 2016 Democratic candidate at a considerable disadvantage from the gitgo.
But it’s hard to imagine a worse candidate than Hillary. She lacked the political savvy and sunny empathy with which Bill Clinton was blessed, but she traded on her status as a former first lady to twice win a senate seat in heavily Democratic New York. That, and her overweening ambition to be the first female president, led her to believe she could win the presidency. In 2008, running a fiscally undisciplined campaign, she lost the nomination to Barrack Obama. She learned her fiscal lesson, but failed to learn she lacked the political skills and personality required to win the presidency. Running in 2016 against reality show sociopath and possible billionaire Donald Trump, she won the popular vote but lost the electoral vote because she ran a deplorable campaign in Wisconsin, Michigan, and Pennsylvania. Her defeat led to Trump’s appointing Gorsuch, Kavanaugh, and Barrett to the supreme court.
Many Democratic women love Hillary Clinton and believe she lost because of sexism. Being a woman certainly was to her detriment in a presidential election: according to Pew polling, both men and women think men handle national security issues better than women. In a January, 2020, post I observed:
Governors can order state militias to quell riots and stack sandbags on flood threatened levees, but they cannot unilaterally send state, let alone federal, military forces into combat with foreign nations, nor do they have the authority to authorize the launch of nuclear weapons. The President is commander in chief of our armed forces, and the highest obligation of the Presidency is keeping our nation safe.
Americans, by a wide margin, believe men do that better than women. Why? Pew’s survey did not answer that question. But the answer is obvious. The instinct to aggressively protect and defend is hard wired into the male of the species. Examples abound. When the hijacking of Flight 93 was thwarted, men organized and rushed the cockpit. In mass shooting after mass shooting, men, not women, rush the shooter. Husbands protect their wives, sons protect their mothers, brothers their sisters, and men and boys protect women they don’t know.
That immutable truth of human nature puts women seeking the presidency at a permanent disadvantage. A woman might serve as a competent commander in chief, but the electorate is predisposed to prefer a man for the position. Ergo, she might never get the chance to prove she can do the job.
The gender of a presidential candidate might not matter in heavily Democratic states such as California, New York, and Massachusetts, but it will matter in states where there is strong support for traditional sex roles, and where there are fewer crusading feminists who assert that the only difference between men and women is the shape of their skins.
Whether Elizabeth Warren and Amy Klobuchar, the Democrats endorsed for president by the New York Times, can overcome the disadvantage of having two X chromosomes is a fair question — and for Democrats whose highest priority is defeating Donald Trump, it is a vital question that must be considered no matter how infuriating their party’s gender identity caucus finds it.
Can a woman defeat Trump? In theory, yes. But it won’t be easy, let alone a sure bet. Trump is a both a bully and, to many, a strong father figure. Our nation is at war. Heather Hurlburt observed in 2015 “ … that in anxious times women candidates don’t guarantee women’s votes.” When Warren and Klobuchar advance their womanhood as a strength, they actually call attention to a weakness. Everyone knows they are women. Their best approach would be never mentioning gender and instead discussing issues. But even that might not be enough.
Could a man have defeated Trump in 2016? I don’t know. The electorate’s throw out the bums mindset stacked the deck against a Democratic victory. But a politically savvy man with a sunny disposition and a very good campaign manager would have had a better chance of winning than a woman. That’s not an opinion. That’s a fact.
Hillary led us down the road to defeat. She and Ruth are deeply responsible for the composition of the supreme court that is poised to repeal Roe. Will Democratic women acknowledge and accept these facts? Probably not. But they should.