Palin on the Supreme Court and Roe

I can't get over her not mentioning the Exxon case. When Katie Couric asked about Supreme Court decisions she disagreed with, I thought, "Well, Katie just handed her an easy question on a silver platter." Naturally, I thought she would discuss the Exxon Valdez spill, how the Alaska fishing industry was adversely affected and how the Supreme Court cut the settlement in half--and during a time when Exxon made record profits. I thought, "Okay, now we'll see the famous barracuda, the woman who stands up to big oil."

But, astoundingly, there's the Governor of Alaska just sitting there, giving a roundabout answer that didn’t make a whole lot of sense. I kept expecting her to say, "Well, the Exxon case, of course." But she didn't! Good grief--it just happened not too long ago, and I can't believe it wasn't the first thing to pop into her head.

Rod: Good post. As I just wrote on another thread, thanks for finding ways to use the Palin story as a jumping off point to more interesting topics. One note: I recommend not skipping Biden's response, which I found quite good, and not just in comparison to Palin. I think the point he raises is one that any thoughtful conservative should admit is valid; namely, that Roe v. Wade is as close as we can probably come to a way of settling this issue so we can go on with our lives. I like that he avoids the word "consensus" or "compromise"; I think he recognizes it as the Solomonic "saw the baby in half" kind of solution that it is, which gives me some hope.

Bless,
Doug

Neither candidate mentioned the Lilly Ledbetter case, either, which is pretty much fresh on everybody's minds. It's the case where the woman sued Goodyear because she faced gender-based pay discrimination; SCOTUS said she was out of luck because workers are supposed to file a pay discrimination lawsuit within 180 days! I thought that ruling was pretty awful, because sometimes it takes years to figure out you're being paid less for the same work, since workplaces always discourage discussions about how much everybody makes. I was hoping at least one of the candidates would say something about that one!

I read through this three times. Palin's answer leaves the Beltway-eyed cold, but I not only like it, I think it was perfect.

"I, personally, could sit down and find some I take issues with, but as mayor and governor, my attention was never focused on stewing over SCOTUS decisions I didn't like, but on my job."

To assume that one should abandon any sense of justice, and immediately assume the posture that SCOTUS was wrong and be hell bent on reversing SCOTUS decision on Exxon is to be as shallow, unprincipled, and self-serving as the nitwits in DC are right now.

As governor, overturning that would have a priority level somewhere just below "Run naked through the streets of Wasilla in January yodelling for my neighbor's entertainment".

As well as any other policy wonk special issue.

"I think the point he raises is one that any thoughtful conservative should admit is valid; namely, that Roe v. Wade is as close as we can probably come to a way of settling this issue so we can go on with our lives"

I really disgree with this. If the issue were returned to the states there would be MUCH less dissension and bitterness over abortion. Because local laws were struck down by Roe, pro-lifers feel disenfranchised and view the US' legal toleration of abortion as illegitimate. Because that toleration is legally hinged on a Supreme Court case, The Court has been more heavily politicized, with every nomination subject to an intense search into the nominee's views on the matter, and every Presidential campaign forced to outline whether or not it woulf apply an abortion litmus test to Court nominees.

And that is aside from the fact that the legal reasoning employed in Roe just isn't well-reasoned Constitutional law. Even pro-choice scholars often admit this.

If abortion were in the states' bailiwick, Supreme Court nominations would lose a big part of their contentiousness. Most states would probably adopt an abortion tolerance with more restrictions than now exist, with outliers on both sides; these laws would command more respect from social conservatives as at least being legitimate acts of legislation, and they could be modified over time--we wouldn't have people on both sides freaking out over the future of one national abortion ruling every 4 years.

In short, Roe has created more dissension over this issue than there would be otherwise, and that dissension has continued.

I was annoyed that Palin couldn't come up with the name of another case that she didn't like.

Then I asked myself the same question. I drew a blank. And even though I've blogged about Kelo extensively, and even though I write a weekly column that deals with urban development, I didn't think of it until about 10 minutes later. Had I been the subject of the interview, 10 minutes later would have been too late. "Oh, by the way, Katie, I just thought of another court case I don't like." Katie would have already been through three more subjects by then. Once you're off-balance in that way, you're not going to get back in the groove. At least in Jeopardy, you get several questions in the same category and a chance to get your memory going in that direction.

On the subject of the Couric interview, Rod reminds me of an armchair Jeopardy player. It's really easy, when you're in your La-Z-Boy eating cheese doodles, to get all the answers right and to belittle the contestant who is having a bad day and freezes up in front of all the world and Alex Trebek.

CBS is taking this one bad day and spreading it out over two weeks, making it look like a long series of bad days. Non-panicky bloggers should have realized that after the first segment was rough, the rest of them would have been, too. It's all part of the same interview, and if you'd seen it all on a single day, I think it would have created a different impression.

If you're not familiar with the magic of television, I suppose you might be surprised and outraged that, gee whiz, Palin's interview isn't going any better than the day before or last week.

She forgot the June 2008 ruling by the Supreme Court that cut damages for the Exxon Valdez spill from $2.5 billion to $500 million?!!

She sure as heck disagreed with that ruling when it happened.

I'm going to chime in here and state that the 'Right to Privacy', as currently imagined, is idiotic.

Not because I think Roe v. Wade is bad law, although I do. (Please note I am pro-choice, and think the pro-life movement would be totally crippled without the Roe v. Wade windmill to tilt at.)

It's because it is impossible to define a medical right to have an abortion, and not a medical right to, for example, take cocaine recreationally.

If we have 'medical privacy' and the government cannot punish us for 'medical decisions', and I can actually see the rational behind that, it becomes inherently stupid to argue that we can't do anything to ourselves medically. (And, yes, technically, using drugs is not illegal, just the possession and sell and manufacture of them, but the government can't 'technically' ignore constitutional issues like that.)

In fact, at minimum, medical privacy, if it's a right under the constitution, has to cover self-medication of any form, and only maybe can cover medical procedures involving a doctor and a fetus. Privacy would logically apply more to secrets that just you know, not one that include your doctor.

Granted, I'm very much in favor of relaxing drug laws, but not that far by making them all unconstitutional, and my actual point is that the courts have found drug laws constitutional on privacy grounds. There have been exceptions, like peyote, on other constitutional grounds, but not on privacy. Which is just completely inconsistent and makes 'privacy', as an abstract right, rather worthless.

OTOH, getting back to Palin, what the heck is she talking about 'better handled at state level'? Which decisions, exactly, would that be?

Cooper v. Aaron? Abington School District v. Schempp? NAACP v. Alabama? Flood v. Kuhn? Chisholm v. Georgia? Crandall v. Nevada? Are we supposed to just guess?

Ryan: That wasn't well expressed on my part, and I pretty much agree with you. I don't agree with Biden either, what I meant was that it is an argument that I believe good people can make in good faith, and they shouldn't be slammed as babykillers if they do.

Bless,
Doug

Wow - Lawrence v. Texas!??? You want a state in the US to be able to throw me in jail for my long-term relationship and what we do in the privacy of our home if 50% of that state's citizens give the thumbs up?

Honestly, Rod, how can you say you have gay friends? Do you not realize that sodomy laws were used to justify discrimination in employment, in housing? I accept you believe we're sinful. Just how far would you take this? Do straight married couples using birth control have a right to privacy? Do unmarried straight people fornicating in the privacy of their own home have a right to privacy? Does the 13-yr old kid jacking off in the bathroom have a right to privacy?

From that unintelligent, knee-jerk conservative, Ramesh Ponnuru:

'Those excerpts from Couric's interviews give me more concerns about Biden than Palin. He seems to be under the impression that there's a "liberty clause" in the Fourteenth Amendment (he has talked about it in Supreme Court confirmation hearings too). He misdescribes what Roe held. He seems to believe that Roe has been good for social peace and that this alleged fact justifies it as constitutional law. Palin, meanwhile, is asked a somewhat oddly phrased question by Couric, and says, reasonably enough, that the Constitution protects a right to privacy. Now it is certainly and obviously true that the Constitution protects privacy: What else do the Third and Fourth Amendments protect, for example? There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.'

Beliefnet is giving us a twofer in sleight of hand: first Kmiec assures us that Obama is really pro-life; and now we learn that Palin is really not very pro-life. Some idees fixes simply cannot be fixed, it seems. This new spin on Palin is almost as truthful as the one about Palin the idiot, which runs up against the fact that she was the governor of Alaska and proved herself to be a principled and effective conservative.

I'm not sure we can say just because Gov. Palin didn't cite specific cases, they aren't "on her radar". Similarly, I don't think her reluctance to name specific newspapers or magazines is proof that she "doesn't read".

You seem to be convinced she is uninformed and incurious. Maybe that's true. But it's also possible that what we're witnessing is a highly visible case of stage fright. Do we really believe the governor of an American state can't think of the names of any newspapers?

It's more likely she's over-thinking and attempting to triangulate. Because if she says, "The New York Times," as a lot of Americans would, Couric's follow-up could be, "But they've been tougher on Sen. McCain than anyone!" Or "But isn't that a liberal paper?" She's been smacked around for bungling some key questions, and now she is seizing up anytime a question seems potentially dangerous.

If what we are seeing is stage fright, is Gov. Palin a good politician? Probably not. Mental alacrity is a prerequisite these days. But is she stupid, uninformed, incurious, a bad conservative, or a bimbo, as people are suggesting? None of those charges have been proven beyond a reasonable doubt.

It would probably harm exactly no one if we gave the hysterics and hyperbole a vacation day, and considered the possibility that Gov. Palin is a smart lady having a really bad week.

William: Very, very well said. Thank you.

Doug

William-

Very well said. Similarly, it is possible she doesn't actually subscribe to any newspapers--she might get any Alaskan news from official sources (entirely possible) and national news from miscellaneous conversations, online sources, or such. In that case she might have been afraid that if she said, say, "The New York Times," there would be a round of press stories saying 'Palin lied--she doesn't subscribe to the NYT.'

I'm reminded on when Pres. Bush said he doesn't read newspapers--I think there's value in reading them even with official sources, but we can assume a President doesn't *need* newspapers to be informed.

Doug, I appreciate your comments

William,

I think you’re right to some extent – it would be foolish to suppose that she’s never literally read a newspaper, or even that she has no sense of world events. You use the comparison of stage fright, which makes sense; she reminds me most of some one doing poorly in a job interview (something I’ve had the chance to observe many times as an interviewer.)

I’ve tried in that situation– as I believe Couric was doing to some extent – to help people out by asking a really basic question, hoping to get them back on track and calmed down; but sometimes it just makes matters worse when they flub a question that they know should have been a no-brainer.

All of which would be an excuse for what we’ve seen from Palin so far if she wasn’t a politician running for office. She needs to be able to express herself in public – that’s part of the job and we need to know what she thinks about major issues. I know some have said on her behalf that she’s just not a “slick” politician - but I think that misses the fact that her answers are so totally unclear that listeners have no idea where she stands, how she thinks, etc.

I can see why partisans would be able to let it slide and hope she gets more comfortable down the road, but it’s hard to blame independent voters from having grave doubts about voting for her – either because they judge her not competent or because they simply can’t get a feel for what she actually thinks.

Oh me too, I (honestly) couldn't have thought of other specific cases either. I am so glad Sarah Palin the VP candidate is just like me, dumb.
I would have loved to hear her talk about abortion as a human rights issue like Ron Paul does, rather than the compromising, easy way of saying to just pass it off to each state. Protecting human life must always trump "privacy".

Are we electing constitutional professor in chief, or president?Then let's have Lawrence Tribe and Robert Bork run and be done with it.Also,ask Obama and Biden what they think abotu such issues. Sorry, forgot we cannot ask them any tough questions. just crown The One and be done with it.

This is all gotcha nonsense. What is scary is that the Mccain campaign, as with Ifill, allows Palin to be so presented.

As an attorney who ahs actually litigated search and seizure cases in criminal courts on both sides, I've always thought the right to privacy was a joke, an invention of Douglas, Brennan and Warren, finding "emanations and penumbras" when they couldn't explicitly find one anywhere in the Constitution,and doing so to justify their activist silliness. As in the dissent in Griswold v. Connecticut(the father of privacy "emanations and penumbras"), Connecticut had a silly law banning condom sales, so get the legislature(those people we supposedly elected to write and pass our laws) to change the law if you don't like it, but darn if that has anything to do with a right to privacy.Brennan and Doulgas instead made up the emanations and penumbras of privacy, which became a playgrorund for activist stupidity. And same with Bowers v. Hardwick(the decision upholding Georgia sodomy ); if you don't like the law, have the legislature change it. Recall the 4th Amendment made numerous provisions for security of your home and person from unwarranted search and seizure, but the Framers made no further such privacy provisions.

Worse, this has allowed state legislatures to abidicate their responsibility. What's the point of having representative government if we allow or even encourage unelected judges to make it up as they go along? And sadly in most states suspect most legislatures would rather vote "present" than fight these issues out. But those fights in state legislatures are what our federal republic was supposed to be about. That divisiveness is how it was supposed to work.

If you recall, Palin just mentioned a Supreme Court case she disagreed with, less than a month ago. Granted, naming a case you disagree with is a little trickier than just naming any case. Of course she disagrees with Roe. I assume she disagrees with Dred Scott. Let's say Exxon v. Baker is too esoteric and obscure, and of no national political interest. However, in her convention speech, she bashed Obama for agreeing with Boumediene v. Bush, and the crowd went wild. She said: "Al-Qaeda terrorists still plan to inflict catastrophic harm on America, and he's worried that someone won't read them their rights." Hmmm, could it be that she had no clue about what she was reading off the teleprompter? Apparently she believes in a constitutional right to privacy, but not habeas corpus.

This was not remotely a gotcha question, unless your definition is a question your candidate doesn't know the answer to. Couric asked the same question of both Biden and Palin, no doubt with the expectation that Biden would answer the Violence Against Women case, and that Palin would answer the Valdez case, since each had spoken out in the past about each of these cases, and why they thought the cases were wrongly decided. That's the problem here. It's not that she didn't know another case--she clearly does. But she drew a blank, or made a choice not to give a specific answer. This is a real problem for a candidate of a campaign that decries "justices legislating from the bench". It's not like it's a tangential issue.

"Who is the prime minister of Romania?" Now that's a gotcha question. We haven't had anything like that in these interviews.

We should remind ourselves that very few voters do any careful analysis at all. Most voters will choose based on habit, gut reaction, or reasons either shockingly vapid("He's sooo inspiring." or "She's just like ME!"), or worse ("He's.... well, different." or "She talks funny.")

If Sarah Palin needs political correctness and protection in interviews and dialogues ... if she suffers "stage" fright (or any type of [public] speaking fright) -- what will she do on the international stage and with other international leaders, speakers, deciders, et cetera?

Loudon is a Fool - your analysis reminds me of the ongoing debate between Randy Barnett & Kurt Lash regarding the meaning of the Ninth Amendment & "unenumerated rights". Had Palin mentioned any of those names or phrases, I'd be less inclined to criticize her choice of words.