Wednesday, August 10, 2005

NARAL and the Price of Obsession

I think NARAL has recently been cribbing its notes about how to run a political campaign from the NAACP.

For those who don't know - NARAL has recently produced an ad, to run on CNN and elsewhere, that more or less claims that John Roberts supports abortion clinic bombing.

WTF?, you find yourself asking? Has NARAL discovered the smoking gun, the dark secret in Roberts' past that demonstrates his unsuitablity for the high court? Or are they lying? Well, Fact Check.org claims it's more the latter.

But NARAL is smart enough to know that getting sued for libel and slander sucks, so claim isn't entirely made out of thin air. Roberts once worked as general counsel for the Bush 41 administration, and during the Supreme Court case Bray v. Alexandria Women's Health Clinic (1993), argued the administration's position (which was later affirmed by a 6-3 majority).
Surprisingly enough, the Bush 41 administration did not argue that they supported clinic bombing or baracading the entrance. Rather, they argued against the clinics' attempt to federalize this case by sueing the defendants under a provision of an 1871 anti-Ku Klux Klan law, which federalized the crime of conspiring to deprive civil rights.

We studied this case in my Legal History seminar. The issue turned on whether the pro-lifers, some of whom bombed clinics and others, I think, baracaded clinics, were guilty of a Klan-like conspiracy to deprive people of their civil rights. And plainly, whatever the abortion protesters were guilty of, it wasn't that. For one thing, the law had racial oppression in mind, and at best, this was gender discrimination. For another, this wasn't gender discrimination. The clinics and victims were not targeted for being women, but for being either patients or providers of abortion. While all patients were women, the providers and workers equally targeted were men as well as women. They were victims in virtue of their relationship with abortion, not in virtue of their gender. (The KKK victims, in 1871, were victims in virtue of their race.) I also remember wondering how this exactly qualified as a conspiracy - if it was a conspiracy, it was one in plain sight, where the leaders and participants didn't wear masks and sheets and remained public figures.

Why would this distinction even be meaningful? In ordinary circumstances, it's not. The police powers vested in the states mean that the criminals in this case were liable under state law, and if memory serves, there was no evidence presented to the Court that the states wouldn't be prosecuting to the full extent of their laws. This of course, was the problem that led to the original 1871 law - the KKK was able to operate without fear of state prosecutions, as they enjoyed popular support in the areas of the South where they operated. The law was needed only insofar as the States weren't doing their jobs.

In essence, this was the position that Roberts defended to the Court (again, on behalf of his real client, the Bush 41 administration - he never worked for the bombers, calling them "criminals" in his brief). NARAL would have you believe, in this ad, that this position amounts to filing briefs supporting abortion clinic bombing. And to think, in my first year at UW, I attended meetings of UW's NARAL chapter. *sigh*... This reminds me of the antiwar movement. I sort of leaned against going to war against Iraq, but the antiwar movement was so deadset against my values that I couldn't support them. I'm pro-choice, but I think it would be humiliating to be associated with these people.

Remember - the point of this ad is most certainly not to get out the truth about Roberts, and it's sure as hell not about presenting a balanced portrait. Like the NAACP ad, there is only one purely partisan goal that all other interests, including especially the truth, are subordinated under - in this case, to defeat Republicans at all costs. They don't have to be right or factual. They just have to scare enough voters, and the Senators who are supported by them, to eek out a filibuster. And even if they fail to persuade anyone outright, they get a victory out of all the free publicity that the ad will get the more the media discusses, and if they at least raise doubts. The news consuming audience, broadly, has enough of a bullshit detector to know that Roberts doesn't support violence. But, NARAL succeeds as a long they raise doubts about Roberts. This is much more about poisoning the well then about actually presenting facts. Which is what makes this so despicable.

But why? Even if somehow they convinced Democrats to abandon the filibuster compromise, and Roberts were to be successfully Borked, surely they know that Bush will just nominate another conservative, possibly one even more dangerous to their agenda.

There are two possiblities that I can see. One, they may hope for a repeat of what happened with Bork - after Bork went down, a cowed Reagan administration nominated Anthony Kennedy in his place. Kennedy leans more to the liberal side of the Court, so this would be a happy outcome for these activists. Two, they realize that Bush 43 has learned the lessons of the Bork ordeal, so they know that Bush won't just give up and give them another Anthony Kennedy. But they are also looking at the clock - Bush only has another 3 years of his presidency left, and even more ominiously, mid-term elections are nary a year away.

My suspicion is that even now, even this far away from the next election, NARAL and its allies hope that they can run down the clock on Bush. Their hope is that by 2006, Democrats will make a turn around in mid term elections, Bush will be in full lame duck mode, and as of 2008, a Democrat (let's call her, for convenience's sake, "Hillary") will emerge triumphant. So regardless of how many nominees Bush has gone through, the 2006 opinion polls (and looming real polls) will effectively force Bush to nominate another Kennedy. And any other retirees in 2006 or later will get so held up by Democrats unless Bush also replaces them with Kennedy's.

So more than anything else, I think this is a matter of delay and forestall as long as possible. The longer they do that, the less likely it is that Bush will get who and what he wants on the Court.

Is their hope reasonable? I don't know - I'm inclined to think not. For all the troubles the Bushies are having these days in the polls, it hasn't really, that I can see, translated into any increased popularity for Democrats. And more to the case in point, especially after the disclosure that Roberts has also worked pro bono on behalf of gay rights groups, I can't help but think this will actually cause a net loss in support and crediblity for NARAL. They demonstrated not only rank dishonesty in this case, but even political stupidity in trying to paint a man who supports gay rights as a religious ideologue who supports violence against women. They would do well to remember the fate of the boy who cried wolf.

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