Focused Read in 4-5 minutes
"Kavanaugh Will Try to Hide His Views on Abortion. Here’s How to Not Be Fooled.
(By, Irin Carmon)
The Pigpen-style swirl of crime around the president who nominated Brett Kavanaugh to the Supreme Court is extraordinary.
Still, there is one very standard aspect of the Kavanaugh nomination: the obfuscating code words around abortion.
The judicial nominees of Republican presidents in particular have historically said as little as possible about abortion in their hearings, the better not to awaken a public that to this day is overwhelmingly supportive of Roe v. Wade.
“Do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade?… [M]y answer to you is that I do not,” Clarence Thomas solemnly declared in his own hearing.
Nine months later, as a justice, he joined an opinion stating, “Roe was plainly wrong.”
(Emphasis is mine.)
Candidate Donald Trump broke from the euphemisms to claim that Roe’s demise “will happen automatically in my opinion because I’m putting pro-life justices on the Court.”
And when Kavanaugh’s name was first floated to replace retired Justice Anthony Kennedy, conservative insiders publicly reassured their own nervous ranks about his anti-abortion bona fides.
“On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh,” wrote one former clerk, while a conservative attorney offered, “There is no reason to conclude that Kavanaugh would support Roe and Casey when presented with the question as a Supreme Court justice.”
The moment Trump actually named Kavanaugh, however, the gaslighting of abortion supporters began:
People who dared worry about the future of the procedure were “scaremongers”consumed by “hysteria” — after all, Kavanaugh was such a stand-up guy he’d chosen female clerks! People, it’s all on the internet; we can read.
Nonetheless, Kavanaugh’s hearings will be full of doublespeak. For help reading between the lines, consult the below.
“Abortion on demand.”
Thrown around by the right — including Kavanaugh, who tellingly used it three times in his one major abortion opinion — to denote women capriciously making decisions for themselves.
“Balls and strikes.”
... perhaps he’ll revert to Chief Justice John Roberts’s aw-shucks mantra in his 2005 confirmation hearings: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
In other words, he promised to uphold the law and the Constitution, not impose policy preferences, like making abortion illegal...
“Between a woman and her doctor” and “safe, legal, and rare.”
Some Democrats still use these vintage pro-choice talking points, but they grate on a new generation of abortion rights activists. “Between a woman …” implicitly defers to a white-coated professional over a pregnant person’s reproductive autonomy and doesn’t acknowledge that trans people have abortions. “Safe and legal” still has lots of fans on the left, but “rare,” as Tracy Weitz put it, “separates ‘good’ abortions from ‘bad’ abortions.’” In 2012, Democrats took the Clintonian slogan out of their platform.
Casey (or Planned Parenthood of Southeastern Pennsylvania v. Casey).
This unloved legal compromise, decided by the Supreme Court in 1992, declined to overturn Roe but said states could erect all kinds of roadblocks to prevent women from exercising that right — as long as the obstacles don’t present a so-called “undue burden.” The legal haggling ever since has been over exactly which burdens are undue...
“The democratic process” or “It should go to the states.”
This is what you’re likely to hear from Republicans, and what’s not to like about some good old-fashioned democracy? Well, previously in the democratic process and states’ rights: bans on interracial marriage and other Jim Crow–era restrictions...
“Dismemberment abortion,” “partial-birth abortion,” and “fetal pain.”
These are political, not medical, concepts cooked up by the anti-abortion movement to refocus the debate on the fetus and on potentially uncomfortable details...
Doe v. Bolton (1973).
You don’t hear much about this lesser-known companion case to Roe v. Wade, decided at the same time, but it’s GOP code for “women having abortions willy-nilly.” In this case, brought on behalf of a Georgia woman, seven justices ruled that abortion could be banned at viability as long as there was an exception for a woman’s health, defined broadly by a physician as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” Doe v. Bolton is why Paul Ryan once sneered, “The health exception is a loophole wide enough to drive a Mack truck through it,” and John McCain, when debating the issue, put derisive air quotes around the word “health.”
Dred Scott v. Sanford (1857) and Plessy v. Ferguson (1896).
These irrefutably wrong Supreme Court decisions upholding slavery and segregation are evoked by conservatives in the abortion debate to (1) compare abortion to slavery, and (2) point out that some Supreme Court precedents are actually bad...
Garza v. Hargan or Garza v. Azar (2017).
The rare abortion case on which Kavanaugh has ruled. The Trump administration unsuccessfully tried to bar a raped migrant teenager from leaving detention to have an abortion, even though she’d jumped through all the legal hoops. Some conservatives protested that Kavanaugh didn’t go far enough by not joining another dissent that claimed that legally, an undocumented immigrant is not a person.
Kavanaugh’s own dissent would have run out the clock by looking for a sponsor, a process that had already delayed the young woman’s abortion by seven weeks and threatened to push her pregnancy past the legal limit.
The biggest tell of all: Kavanaugh deferred to rulings keeping abortion legal but wrote, “As a lower court, our job is to follow the law as it is, not as we might wish it to be.” On the Supreme Court, on the other hand …
“Even Ruth Bader Ginsburg hates Roe v. Wade” and “the Ginsburg rule.”
Yes, Ginsburg has often critiqued Roe, but that’s because she preferred a different strategy (incrementally striking down abortion bans rather than all at once); legal basis (women’s equal citizenship rather than right to privacy); language (maybe a tiny bit less patronizing to women and deferential to doctors); and test case (specifically her own client, a nurse the military was trying to force to abort)...
As for the so-called Ginsburg rule Senate Republicans invoke to say Kavanaugh doesn’t have to say shit about shit: While Ginsburg did say in her 1993 hearing that she didn’t want to speculate on future cases, this is what she also said in those same hearings:
“[Abortion] is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.” By all means, let’s have Kavanaugh follow the Ginsburg rule.
Griswold v. Connecticut (1965).
This opinion struck down a ban on contraception for violating a “right to marital privacy,” forming some of the basis for Roe. Asking about it has been used as a proxy for asking about Roe; those who express reservations about Griswold probably feel the same about Roe, in other words.
“Original public meaning,” and “originalism.”
This is the conservative dictum that judges should stick to the framers’ intentions, popularized by the late Justice Antonin Scalia.
Taken to its strictest conclusion, originalism could make it legal to discriminate against women and LGBT people, legalize segregation — and of course ban abortion.
Some liberals argue that the framers intentionally used broad language to encourage interpretation over time.
“Rational basis.”
While Casey said states could only restrict abortion as long as it didn’t put an “undue burden” on a woman’s access, “rational basis” would be an even lower bar, one that the conservative Fifth Circuit tried to slip through in Whole Woman’s Health only to be slapped down by the Supreme Court. Under rational basis, almost any restriction on abortion would be allowed to stand without much scrutiny — say, requiring all medical equipment to be gold-plated — as long as it sounded reasonable.
Roe v. Wade (1973).
Only two justices dissented from the opinion that struck down all state abortion bans, and one was Justice William Rehnquist, who in 2017 Brett Kavanaugh called his “first judicial hero.”
“Settled law” or “precedent” or “stare decisis.”
When Kavanaugh told Maine senator Susan Collins that Roe is “settled law,” she was satisfied that he wouldn’t go after the fundamental right to abortion. But mouthing the right words about how the Court is supposed to avoid sudden moves doesn’t mean long-standing decisions can’t be toppled.
Chief Justice John Roberts, who called Roe “settled as a precedent of the court,” has never voted against a restriction on abortion. Plus, he’s voted to strike down plenty of long-standing precedents with regard to voting rights, union rules, and money in politics.
Stenberg v. Carhart (2000) and Gonzales v. Carhart(2007).
With the help of Justice Sandra Day O’Connor, the court struck down Nebraska’s “partial-birth abortion” law because it had no exception for the health of the woman. But when she retired and was replaced by Justice Samuel Alito, the court waved through a federal version. So much for precedent.
Whole Woman’s Health v. Hellerstedt (2016).
In the Court’s last big abortion case, Justice Anthony Kennedy voted with the four Democratic appointees in ruling that states had to have a really good reason for regulating abortion clinics out of business. If the Court would overturn just this single, very recent so-called precedent, the last clinic in Mississippi would be forced to shut down, and quite possibly nearly three-quarters of the clinics in Texas — to name just two states where abortion access would be severely curtailed.
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📎 Personal Note:
If you follow me on Twitter you know I spend a great deal of time conversing with select media & critiquing their reporting & their analysis based on my personal passion for the values & the principles of the founding of America, the values & principles of the Democratic Party & a journalism that is deeply committed to its First Amendment charge to inform the citizenry so they might maintain this Republic, so I was quite pleased to see MSNBC host Chuck Todd write about the current state of press & how media has to step up & be better. At the end of his piece, I leave you a copy of the note I sent him in response...
"It’s Time for the Press to Stop Complaining—And to Start Fighting Back
A nearly 50-year campaign of vilification, inspired by Fox News's Roger Ailes, has left many Americans distrustful of media outlets. Now, journalists need to speak up for their work.
I’ve devoted much of my professional life to the study of political campaigns, not as a historian or an academic but as a reporter and an analyst.
I thought I’d seen it all...
But there’s a new kind of campaign underway, one that most of my colleagues and I have never publicly reported on, never fully analyzed, and never fully acknowledged: the campaign to destroy the legitimacy of the American news media.
Bashing the media for political gain isn’t new, and neither is manipulating the media to support or oppose a cause. These practices are at least as old as the Gutenberg press. But antipathy toward the media right now has risen to a level I’ve never personally experienced before...artificially stoked by people who found that it could deliver them some combination of fame, wealth, and power.
Some of the wealthiest members of the media are not reporters from mainstream outlets. Figures such as Rush Limbaugh, Matt Drudge, and the trio of Sean Hannity, Tucker Carlson, and Laura Ingraham have attained wealth and power by exploiting the fears of older white people ...
... like much else in the Trump era, Donald Trump didn’t start this fire; he’s only spread it to a potentially more dangerous place.
The modern campaign against the American press corps has its roots in the Nixon era. President Richard Nixon’s angry foot soldiers continued his fight against the media even after he left office.
Roger Ailes, who went on to help found Fox News, was the most important of those figures. His sustained assault on the press created the conditions that would allow a president to surround himself with aides who argue for “alternative facts,” and announce that “truth isn’t truth.”
Without Ailes, a man of Trump’s background and character could never have won. Roger Ailes was the godfather of the Trump presidency.
Nixon’s acolytes blamed the press for drumming a good man out of office. ...
Enter Roger Ailes...Ailes was a media genius who understood better than most how to use television to move people. There’s a fine line between motivating people through TV messages and simply manipulating them.
Ailes’s gift, and the secret to his success, was his comfort in plunging across that line and embracing the role of TV manipulator.
... In the early ’90s, while he was president of CNBC, Ailes had a hunch that an evening lineup catering to a culturally conservative audience would thrive.
He wanted to give his theory a chance, but he was passed over for the leadership of the network’s new channel, MSNBC.
Enter Rupert Murdoch. The mogul bought into Ailes’s theory, and in 1996 they launched Fox News with the slogan “Fair and balanced.”
From the very beginning, Ailes signaled that Fox News would offer an alternative voice, splitting with the conventions of television journalism.
Take the word balanced. It sounded harmless enough. But how does one balance facts?... Ailes wasn’t building a reporting-driven news organization.
The promise to be “balanced” was a coded pledge to offer alternative explanations, putting commentary ahead of reporting; it was an attack on the integrity of the rest of the media. Fox intended to build its brand the same way Ailes had built the brands of political candidates: by making the public hate the other choice more.
Ailes’s greatest gift as a political strategist lay not in making his clients more electable, but in making their opponents unelectable. ...
... Ailes created an organization that focuses on attacking the “liberal media” whose “liberal bias” was ruining America. Almost any big story that was potentially devastating to a conservative was “balanced” with some form of whataboutism. ...
The Ailes construction has been so effective that these days, I often get mail from viewers who say: Now that you’ve focused on all of President Trump’s misdeeds, you are biased if you don’t dedicate the same amount of time to Hillary Clinton’s misdeeds.
It seems completely lost on this segment of the population that one person is the leader of the free world, and the other is a retiree living in the suburbs of New York City.
Because journalists report on new and controversial ideas all the time, it’s not uncommon for us to be accused of championing an idea—think of same-sex marriage—that some members of our audience find objectionable. Letting folks know that a movement is afoot, and documenting its successes and failures, is our job.
But Ailes exploited the public’s lack of knowledge of journalistic conventions, portraying reports about social change as advocacy for such change. He played up cultural fears, creating the mythology of a biased press.
Reporters, I fully acknowledge, bring their own biases to their work. The questions they ask, and the stories they pursue, are shaped by things as simple as geography. I grew up in Miami; I follow Cuban politics more closely than many other Americans did. As a result, when I covered the White House, I was more likely than my colleagues to ask questions about Cuba. A New York–based reporter may approach reporting on guns, or on evangelical Christianity, differently than a reporter in Pensacola, Florida. ...
At the other extreme, critics may be accusing journalists of having deliberately and consciously shaped their reporting to serve some political end. That sort of overt bias is far rarer. Ironically, the best example of this kind of bias airs regularly in prime time on Fox News.
But this was the genius of Roger Ailes. He didn’t sweat the nuance; he exploited it. Errors of omission and commission, inadvertent inattention and willful disregard, unconscious assumptions and deliberate distortions—Ailes collapsed all of it into the single charge of bias.
And what did we reporters do in the face of this cable onslaught that would eventually turn into a social-media virus and lead us to the election of the most fact-free presidential candidate in American history? Nothing.
We did nothing, because we were trained to say nothing. Good reporters know that they have to let the chips fall where they may, and that criticism comes with the gig. ...
“Don’t engage” is a phrase I’ve heard internally at NBC over the decade I’ve been here. And “Don’t engage” was a mantra that I actually believed in. I embraced it. On most days, I still want to believe that eventually, the truth will matter. That eventually, folks will see through the silly name-calling and recognize good reporting.
In fact, we not only failed to defend our work in real time from this onslaught; we helped accelerate the campaign to delegitimize the American press corps.
From unforced errors by high-profile anchors to the biggest missed news story of the 21st century—the lack of weapons of mass destruction in Iraq—we have handed critics some lethal ammunition.
There’s not a serious journalist alive who hasn’t had one of those “gulp” moments when you realize that you really messed up. But serious journalists correct the record, serious journalistic organizations allow themselves to be held to account, own up to mistakes, and learn from them so they can do a better job the next time.
I’m fully aware that some entity will try to tarnish this piece simply because I work at a news organization that, yes—gasp—has made mistakes. Here’s what comforts me: The record is there for all to see. The same can’t be said for the manipulators who aren’t playing by any set of serious journalistic rules.
The American press corps finds itself on the ropes because it allowed a nearly 50-year campaign of attacks inspired by the chair of Fox News to go unanswered.
If you hear something over and over again, you start to believe it, particularly if the charge is unrebutted. The Trump team now keeps pounding this message, compounding the challenge. And the president faces little penalty with his voters, no matter how disparagingly he talks about the press corps; it’s precisely what Ailes conditioned them to believe.
For me, idle death threats are now the norm. (I don’t take them seriously, because if I did, I’d never feel at peace.) But forget the personal animus or safety issues reporters now face. American democracy requires a functioning press that informs voters and creates a shared set of facts.
If journalists are going to defend the integrity of their work, and the role it plays in sustaining democracy, we’re going to need to start fighting back.
The idea that our work will speak for itself is hopelessly naive.
Fox, Limbaugh, and the rest of the Trump echo chamber have proved that.
... Does this mean that other cable-news networks should follow Fox News’s lead and become advocates?
That’s not the answer.
... Every day, we need to do our job, check our facts, strive to be transparent, and say what we’re seeing.
That’s what I’ve tried to do here.
I’ve seen a nearly 50-year campaign to delegitimize the press, and I’m saying so.
For years, I didn’t say a word about this publicly, and at times I even caught myself drawing false equivalencies because I was afraid of being labeled as biased.
I know that stating the obvious will draw attacks, but I’ve also learned that the louder critics bark, the more they care about what’s being reported.
I’m not advocating for a more activist press in the political sense, but for a more aggressive one.
That means having a lower tolerance for talking points, and a greater willingness to speak plain truths.
It means not allowing ourselves to be spun, and not giving guests or sources a platform to spin our readers and viewers, even if that angers them.
Access isn’t journalism’s holy grail—facts are.
The truth is that most journalists, in newsrooms large and small across the country, are doing their best each day to be fair, honest, and direct.
These values are what Americans demand of one another, and it should be what they demand of their media.
The challenge for viewers and readers is this: Ask yourself why someone is so determined to convince you not to believe your lying eyes.
You can read more here
* My note to Chuck Todd
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During times of universal deceit, telling the truth becomes a revolutionary act. ~ George Orwell
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The Democratic Party Website
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→ Some of my favorite, most active organizations -- some existing & some developing to elect Democrats:
Born from conversations between Governor Howard Dean and Secretary Hillary Clinton in the aftermath of the 2016 election, Onward Together was established to lend support to leaders — particularly young leaders — kicking off projects and founding new organizations to fight for our shared progressive values. here
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→ Fact checking organizations courtesy of the Society of Professional Journalists
in alphabetical order...
→ Some of my favorite, most informative
follows on Twitter include:
⭐⭐⭐⭐⭐ US Intelligence | Author | Navy Senior Chief | NBC/MSNBC
⭐⭐⭐ Federal Government Operations | Vanity Fair | Newsweek | MSNBC Contributor | Author
⭐⭐⭐⭐ Voting Rights/Voter Suppression | Author | Mother Jones
→ Some of my favorite, highly credible media -- at the moment:
📰📰📰 Mother Jones
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→ Some of my favorite Talking Heads -- at the moment -- and their Twitter handles:
→ Some of my favorite media/panelists -- at the moment -- and their Twitter handles:
✅✅✅ Jennifer Rubin Conservative blogger at @ WashingtonPost's Right Turn,MSNBC contributor
✅✅✅ Natasha Bertrand Staff writer @ The Atlantic covering national security & the
intel community. @ NBCNews/@ MSNBC contributor
→ Some of my favorite Democrat Party Leaders to follow on Twitter, not in elected office but proving knowledge & experience are positives & not negatives are:
Former First Lady Michelle Obama
Former Secretary of State Hillary Clinton
Former Labor Secretary/Today's DNC Chair Tom Perez
Former Attorney General Eric Holder
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g. (Unapologetic Democrat)
✊ Resisting "Fake News"
g. (Unapologetic Democrat)
✊ Resisting "Fake News"
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