Last October, The New Republic published an article called "Supreme Mistake" in which it broke down the more likely scenario of an ultra-conservative SC should Bush win re-election. It spoke mostly of the enviormentally damaging decisions that would most likely come down (i.e. endangered species, water/ soil contamination liability, etc.) rather than wedge issues like abortion or gay marriage, rendering Douglas Ginsberg's notion of a "Constitution in Exile" due to an 'activist' judiciary literally history. It is almost a foregone conclusion with this administration, Bush will get his wish on this front whether or not he successfully posts justices willing to strike down Roe v. Wade. In point of fact, Bush's rhetoric of late has hinted at the nomination of justices who "will strictly interpret the constitution and not use the bench to legislate from."
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This is the most likely outcome of a Bush SC nomination but unfortunately lacks any sexiness in terms of gaining any attention of the electorate and makes it a difficult battle to wage from the left. To win this battle, the left will HAVE to focus on the culture-war issues whether or not they are the REAL issues at stake in this process. I would like to submit a strategy for the Democrats; a contingency plan that I think would be the best preparation for this Supreme Court battle.
RIGHT NOW, in preparation for the Supreme Court battle, blue state legislatures should begin a very publicized push to pre-emptively propose contingencies should Roe v. Wade be taken down by an ultra-conservative SC. The most likely scenario-- should the Supremes strike down R v.W--is that the issue of abortion will become a states issue and once stuck down federally, legislatures would presumably scramble to set state votes either for or against legalized abortion.
Seeing that it is reasonable to assume that most if not all blue states would seek to ratify legalized, state-sanctioned abortions and red states would legally strike it down, blue state legislatures should begin drafting preliminary legislation NOW in the public spotlight for Bush's nominees. Criteria should be inserted in this "emergency drafting" for abortions in blue states; SPECIFICALLY STATE RESIDENCY OF TWO YEARS MINIMUM TO QUALIFY FOR AN ABORTION IN THAT STATE THAT ALLOWS ABORTION.
If presented with the possibility that their backs would be against the wall and that they could NOT get an abortion if they suddenly had an unwanted pregnancy could have a cooling effect that I think would drive home the reality of the position for proponents of a ban on abortion. Because as much as they love to hate the blue states, those who populate the red staes know somewhere deep inside that they NEED the blue states. And if our state reps band together and draw a clear line, many would possibly be forced to rethink their position on the issue.
WHY SUCH A PLAN WHEN IT WOULD MOST LIKELY BE SEEN AS UNCONSTITUTIONAL?
Whether or not the law sticks constitutionally is not the point. That never stopped the Repugs from passing legislation for political reasons that would never hold up.
First, let me reference the issue of gay marriage; I felt that an opportunity was wasted during that debate when the Dem's did not use the hyperbolic language of the R's to their advantage. When conservatives labeled gay-marriage as the first step towards the end of the sanctity marriage, why didn't the Democrats respond in kind? Why not propose laws to "preserve the sanctity of marriage"? Namely laws governing:
>the illegality of divorce
>felony status for adultery
>rigorous government STD testing
>background checking and form filing for anyone who wishes to marry, etc..
TO ENSURE MARRIAGE REMAIN SACRED? Insanity, yes, but the action would say what the Democrats had been saying but a little more hyperbolically and make their point rather clear. Okay...A LOT more hyperbolically. Let's face it, being reasonable and having rational and measured arguments hasn't been filling any Senate seats with "D"'s.
I posted this once before a while back and it quickly went away, but with the SC nomination truly on the immediate horizon, I feel that it deserves a second consideration. After this, I promise it will go away...