Friday, February 7, 2003


Last night on Hannity & Colmes, USC law professor Susan Estrich repeated a popular lie about the status of abortion rights vis a vis Roe v. Wade, 410 U.S. 113 (1973). The most popular version of that lie, and the one which Estrich seemed to be advancing, is that the current U.S. Supreme Court is "one vote away" from overturning Roe. [A more egregious version of that lie, which appears to be beneath Estrich but not the L.A. Times, is that one false Supreme Court appointment would result in a court decision prohibiting abortions altogether. Estrich did not make that particular claim, but she did parrot the popular "5-4" lie closely associated with it.] Here's a verbatim excerpt of what she said about certain Democrat Senators' threat to filibuster Miguel Estrada's confirmation:
Look, Miguel Estrada ... he's kind of a very young guy, and he was a student at Harvard Law School when I taught there. He's obviously very bright. He graduated from Harvard in '86. He's very, very conservative, and the game here is all about the United States Supreme Court. If he gets appointed to the Court of Appeal, on the Court of Appeal you're bound to follow the law. That's OK. But once he gets there, with a year or two or three under his belt, he becomes ... he stands in line to become the first Hispanic on the United States Supreme Court.
Let's ignore the elephant in the living room, namely the possibility that Bush may appoint Alberto Gonzalez to the court in the interim. I'm more interested in the fact that Estrich appears to be casually assuming that Bush will still be President in 2005, 2006, etc. I tend to agree with this assumption, but that does not mean anyone should treat it as a foregone conclusion. At this stage in the other President Bush's first and last term, who in their right mind expected him to be voted out of office a year and a half later? On the flip side, at this point in Clinton's first term, on the heels of the 1994 election, I thought Clinton's chances of being re-elected in 1996 were as poor as my chances of getting into Boalt. Fortunately for both Clinton and me, I was wrong on both counts.
...and the fear is, he gets there, Roe v. Wade gets reversed, a whole line of 5-4 decisions [Colmes attempts unsuccessfully to interrupt] ... let me just finish ... get reversed, and my liberal friends are worried, honestly so, that he would reverse all those cases.
Estrich does not identify "all those cases," so it's a bit tough to evaluate that part of her statement. She does, however, identify one case, Roe, whose central holding has been upheld by 6 of the current 9 Justices. Will someone please explain to me how a 6-3 split among the Justices translates into being "just one vote" away from overturning abortion rights?
I am cynical enough to expect, and almost even accept, that people with an agenda - usually liberals or religious fanatics, but not always - will lie through their teeth if that's what they think they need to do to promote that agenda. Based on her prior appearances on the show, however, I expected better from Estrich. I also expected better from Sean Hannity and the other guest, Ann Coulter. Both are staunch conservatives who know better, but both failed to call her on it.
On a side note, I was rather amused that the group linked to for an example of the 5-4 lie calls itself the "Feminist Majority." If they're really so damned confident that their views represent those of the majority, then what are they afraid of? The worst that can happen on the Court (say, seven Scalias and two Thomases) is that Roe may be repudiated, and a woman's right to abort a fetus would end up in the same category as my right to own a cell phone, a PalmPilot, a case of beer, a bottle of gin, a pet bunny, or, in any circuit that hasn't yet found that mystery Amendment lodged in there between the First and the Third, a gun. Can your state legislature ban any of these things without having the courts strike the ban down as unconstitutional? You bet. But what are the odds they'd be foolish enough to try?
Last and least, this rant has reminded me of the fact that sometimes a spell checker knows more than you do. When I ran this post through Word's spell checker, the spell checker recognized the name Coulter, but not Hannity, Colmes or Estrich. As an alternative for Hannity, the spell checker recommended "sanity." Bingo. For Colmes, it suggested "calms." Also quite true; if anything, the guy's too calm. Take a wild guess what it suggested as a replacement for Estrich.

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