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The Great Reweighting


That Times story you mentioned, John, was quite interesting (Nagourney, “Democrats Weigh De-emphasizing Abortion as an Issue”). If the Democrats are serious about this, they have to ask themselves this question: How do they fight about the courts without fighting about the social issues? If they’re really okay with parental notification now, and don’t think judicial nominees who can’t affect Roe should be stopped because of abortion alone, what’s left of their argument against Priscilla Owen?

What happens if Bush nominates a judicial conservative for a Supreme Court vacancy? If they don’t fight about social issues and especially abortion, the Democrats will have a few other issues left in their quiver. They can talk about civil rights, alleged right-wing judicial activism against democratically enacted economic regulation, the nominee’s alleged personal flaws–but unless the personal flaws are really glaring, I don’t think this would be enough to derail a nominee. They can talk about “privacy rights” in the abstract, or try to argue that the nominee’s skepticism about modern privacy-rights jurisprudence threatens to bring back laws against contraception. But contraception per se is not a live issue, and abortion is. So a debate about privacy rights risks being either irrelevant or becoming another abortion debate. At the end of the day, I think, a Supreme Court fight will be largely a social-issues fight. If Democrats want to avoid that, they’ll have to back off.


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