The Dish

Charles C. Camosy’s forthcoming Beyond the Abortion Wars tries to chart it. Calling the book “fascinating and compelling,” Jim A.C. Everett applauds it for cutting through the spin:

In this book, Camosy masterfully traverses the ‘battleground’ between the ‘pro-life’ and ‘pro-choice’ camps in order to show that this battleground is in fact no such thing. In fact, as Camosy notes, the majority of the American public actually agree on a middle-ground position on abortion. Despite what one might think from reading certain media outlets and Twitter wars, there is actually a large consensus in the public regarding abortion. This insight is deceptively powerful. By demonstrating the areas of agreement, Camosy is able to help guide us beyond the abortion wars to allow a way forward for a new generation.

Commenting on the House GOP’s Pain-Capable Unborn Child Protection Act, which would have prohibited abortions after 20 weeks (except in cases of rape or to save the mother’s life), Camosy points to one key factor in crafting legislation that appeals to this middle-ground – “that Roe has, in effect, already been overturned”: 

In a 2010 article she wrote in the William and Mary Journal of Women and the Law, Caitlin W. Bormann says quite directly that the 1992 case Planned Parenthood v. Casey “established a new, less protective, constitutional standard for abortion restrictions.” Instead of defending privacy, Casey focused on making sure that abortion restrictions didn’t impose what it calls an “undue burden” on women. This standard, she says, “immediately enabled states to invade women’s privacy in new ways.”

Bormann says the Roberts court “has interpreted Casey expansively”, resulting in “erosions of the privacy boundaries” that were once protected by Roe. Indeed, she says that certain privacy rights to abortion were “eviscerated” by Casey, especially as interpreted by the all-important swing voter on the Court, Justice Anthony Kennedy.

Writing in the New Yorker, Jeffery Toobin agrees. Would Kennedy uphold a state law with a 20-week (or earlier) ban? Toobin points out that in Gonzales v. Carhart (2007) this swing justice upheld federal law against late-term abortions with a very different sensibility from his opinion in Casey. Kennedy wrote, “The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” What counted as an undue burden for him when he helped decide Casey in 1992, Toobin noted ominously, looked very different to Kennedy fifteen years later.

In a bizarre bit of political theater yesterday, Senate Democrats tried to force their GOP counterparts to go on the record about whether or not climate change is a hoax:

The Senate overwhelmingly voted, 98-1, in favor of an amendment stating that “climate change is real and not a hoax.” In an amusing twist, the chamber’s most notorious climate denier, Senator Jim Inhofe of Oklahoma, signed on to the amendment at the last minute, mostly because it didn’t attribute a cause to global warming. “The climate is changing. The climate has always changed,” Inhofe said. He then criticized supporters of man-caused climate change by saying that the real “hoax” was “that there are some people that are so arrogant to think” that they can change the climate. (The only senator to oppose that statement was Roger Wicker, a conservative from Mississippi.)

Phillip Bump sighs:

It was a nifty, if insincere, bit of politics. There’s no question that a vote against a flat statement that climate change is real could have been problematic for candidates down the road – especially for those various Republican senators quietly preparing for the big election in 2016. With Inhofe’s re-framing the question, the Democrats, trying to engineer a gotcha moment, ended up empty-handed on the vote, with neither the satisfaction of nailing down opposition to scientific consensus and without a point of leverage for future discussions of addressing the warming planet.

Nonetheless, Rebecca Leber applauds the Dems’ strategic trolling:

The Washington Examiner’s Zack Colman reported Monday that Republicans are regrouping to consider a new strategy on climate. “They’re going to try to drag their feet as long as possible, but there are certain things out there that could bring the predominant GOP position to light,” Ford O’Connell, a GOP strategist and former adviser to John McCain, told Colman. “They want to at least have a unified position and they want to be able to have their ducks in a row. And if they have a solution, they want to have one that has the least impact on the economy.”

That the GOP is strategizing about climate change is itself an admission that they don’t have a climate plan. And until they actually come up with one, they’ll be easy marks for the environmentally minded Democrats who are laughing at their expense.

Obama hasn’t met his goal of doubling exports:

But this Congress could make progress:

There wasn’t a lot of overlap between the proposals in President Obama’s State of the Union address and those in Iowa Senator Joni Ernst’s Republican response. But here’s one thing they both advocated: trade deals. The Trans-Pacific Partnership, one of the big deals the administration is negotiating, has suddenly become one of the hottest topics in Washington, as it appears to be one of the few topics on which President Barack Obama and Republicans might be able to reach any sort of agreement in this session of Congress.

Edward Alden considers the benefits and drawbacks of more trade:

Trade does have a chance of passing, and should. The stakes are high. The United States needs to be deeply engaged in Asia in particular to help build an economic future for the region that is not dominated solely by China, and to make sure the United States has the most open access possible to the fastest-growing consumer markets in the world. President Obama, after many years of hedging on trade, has now clearly made that commitment. The White House has set up a whip operation to build support on the Hill, and the president has signaled that he is willing to work closely with Republicans to muster the votes he needs.

But there will be minimal support from Democrats. Most of the Democratic opponents are not protectionists wanting to run way from competition. Instead, they see a game being played in which too many Americans have little chance of winning. While highly educated Americans have been enormously successful in the more open global economy, building some of the world’s most innovative and dynamic companies, far too many are simply unprepared for that competition.

He argues that, if “even some of the proposals that President Obama urged last night were enacted by Congress, it would be far easier to expand support for trade liberalization”:

An American workforce that was better prepared for the rigors of competition would be far more enthusiastic about taking on new competitors. But until the United States addresses more of its competitive challenges head on – and that means in part new initiatives from the government in Washington — support for trade will continue to be far weaker than it should be.

Kilgore isn’t impressed with the upcoming Bibi-Congress love-fest:

To be clear, the Speaker of the House can invite anybody he wants to address Congress, and the president cannot do much about it. So while the invitation is not a breach of protocol for Boehner, it’s a really bad idea for Bibi. Not only will it further alienate the people who actually conduct America’s foreign policies; it will also expose Netanyahu’s habit of indiscretion in seeking to manipulate partisan divisions in this country in pursuit of his own interests. I’m sure his defenders will make the plea that Iran’s nuclear program represents an “existential threat” to Israel, making all normal diplomatic rules disposable. But since everybody agrees that Iran’s a major global problem and disagree on how to deal with it, Netanyahu would be better advised to make his case in private. But bullying and excessively Machiavellian maneuvering do seem to be a basic part of his personality, I’m afraid.

Aaron David Miller thinks Bibi is mostly just focused on keeping his job:

Any time an incumbent has an opportunity to use the powers and prestige of office to burnish his prime ministerial image, particularly that close to an election, so much the better. It won’t be determinative. Israelis didn’t ride in on a bale of hay yesterday; they’re all too familiar with their politicians’ politicking.  But in a close election, being feted and supported by your country’s key ally with a focus on critical security issues in an age of jihadi terror, well…..that’s not a  bad photo op. And if Bibi wins? We probably can expect to see more of him as both Democratic and Republican candidates for president of the United States fight for the title of Israel’s best friend.

Along those lines, Larison grimaces:

The frequency with which Israeli leaders have been addressing Congress in the last decade is remarkable in itself. This will also be the third time overall that Netanyahu has addressed Congress as Israeli prime minister, and the second time in four years that he will have done so. It will be the third address to Congress by an Israeli prime minister within a decade, and fifth since 1995. No other country’s head of government has spoken so often to our Congress in the last twenty years. (It is not an accident that the last five appearances have taken place while the GOP controlled the House.) That might make sense if Israel were actually a treaty ally of the United States, but it isn’t. It also might make sense if the relationship with Israel were extraordinarily valuable to the U.S., but the U.S. gets almost nothing from this relationship except political and diplomatic headaches. It is one more example of how one-sided and strange the U.S.-Israel relationship has become.

Meanwhile, Juan Cole fumes over Bibi and the hawks’ ongoing and blatant attempts to block the Iran deal:

The US Joint Chiefs of Staff looked at this issue and have decided that only an Iraq-style invasion, occupation and regime change could hope to abolish the nuclear enrichment program. If that is what it takes, the US and Israeli hawks are perfectly all right with it. It would be good times for the military-industrial complex, and Israel’s last major conventional enemy (though a toothless one) would be destroyed. An irritant to US policy and a threat to Wahhabi Saudi Arabia, our big volatile Gasoline Station in the Sky, would also be removed.

Iran is three times as populous and three times as large as Iraq. So I figure this [war] enterprise would cost at least 15,000 troops dead, 90,000 seriously wounded, and altogether $15- 24 trillion dollars over time (including health care for the 90,000 wounded vets). Given the size of the country and the nationalism of the population, it could be much more like the US war in Vietnam than Iraq was, i.e. it could end in absolute defeat.

And again, Mossad isn’t game either.

There is a case before SCOTUS on whether judges should be able to solicit campaign donations:

Mark Joseph Stern provides background on the case:

The dubious ethics of judicial elections hasn’t stopped 39 states from holding judicial races, but 30 of those states have at least tried to keep them as clean as possible by forbidding judges from personally soliciting contributions for their election campaigns. This seems like common sense: Judges aren’t politicians, and they shouldn’t be forced to act like them—especially when their donors could one day appear in their courtrooms.

But the court that brought you Citizens United v. Federal Election Commission is in short supply of common sense when it comes to campaign finance regulations. On Tuesday, the justices heard the case of Williams-Yulee v. the Florida Bar, a challenge to a Florida rule barring judicial candidates from personally requesting campaign contributions.

Lanell Williams-Yulee, a former candidate for county court judge in Hillsborough County, launched her campaign with a personalized mass-mail fundraising letter that asked for “an early contribution” to help her “raise the initial funds.” She promptly got charged with professional misconduct by the Florida Bar. The Florida Supreme Court upheld Williams-Yulee’s sanction. Now she’s appealing it to the Supreme Court, under the theory that the First Amendment protects her right to ask voters for campaign cash.

He expects that “Williams-Yulee will probably win this case.” AJ Vicens points out that judicial elections “are becoming increasingly more expensive”:

During just those two years, state high court, appellate and lower court judicial candidates raised more than $110 million, according to the National Institute On Money In State Politics (state judicial candidates raised just $83 million total in the 1990s). Justice At Stake, a nonpartisan judicial election watchdog group, points out that 20 states have surpassed records for judicial election spending since 2000. Independent spending on judicial elections is also booming, with more than $24 million being spent in the 2011-12 cycle compared to just $2.7 million a decade earlier.

Jeff Shesol looks at recent SCOTUS rulings on related issues:

It’s true that in 2009, in Caperton v. A.T. Massey Coal Co., Justice Anthony Kennedy joined the Supreme Court’s liberals in requiring a West Virginia Supreme Court justice to recuse himself from a case in which the defendant’s C.E.O. had spent three million dollars to get the judge elected. The decision showed at least some solicitude for judicial independence in the face of all that campaign money. Yet Kennedy, in the majority opinion, took pains to stress that the facts in this case were “extreme,” and less than a year later, in Citizens United, he made the blithe assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Indeed, he took it even further: “The appearance of influence or access,” he added, “will not cause the electorate to lose faith in this democracy.” This, as any legal scholar will recognize, is the doctrine of willful naïveté, a central element in all of the Roberts Court’s campaign-finance rulings.

Garrett Epps is disturbed by judges openly soliciting political donations:

I yield to no one in my appreciation for free expression, political or otherwise. But in the years since Citizens United, First Amendment dialogue has increasingly divorced itself from any practical considerations. When did preserving public confidence in the courts cease to be “compelling”? When did the appearance of unfairness become “mere”? Opponents of the rule argue that since states allow judicial campaign committees to raise funds, they have to allow judges to do the same. The logic of this argument is elusive; there is a difference between being asked by an employee to give money, and being asked by the judge himself. In addition, they argue, states that object to the influence of money can simply stop electing judges. They could, but in practical terms, judicial election is going to be with us for a long time. The question should be how states can retain their inherited systems and preserve some of the independence the federal judiciary guards for itself.

Noah Feldman wants to end judicial elections entirely:

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Reity O’Brien hears that a narrow ruling is possible:

Ed Whelan, a former clerk to Justice Scalia and director of the conservative Ethics & Public Policy Center, said it’s possible that the court could leave the First Amendment question unresolved yet decide that Williams-Yulee did not actually violate Florida’s ban. The mass mailing was a decidedly impersonal solicitation and did not yield contributions, let alone the quid pro quo exchanges that judicial campaign donations may invite. It’s also possible the court could dismiss the case entirely, Whelan said. However, he noted, the court takes on cases “to resolve these grander issues, not to engage in error correction.”

Bloomberg View’s editors think there must be a better way:

As long as states elect rather than appoint judges, campaign contributions — no matter who does the asking — will allow interested parties to curry influence. Of course, moving to an appointed system of judges does not eliminate the potential for corruption. Governors can pick judges the same way that presidents pick ambassadors, with friends and fundraisers jumping ahead of more qualified candidates. But legislators can mitigate that threat by subjecting a governor’s appointments to their approval.

Legislators can also set judicial terms that are fixed and staggered, limiting any particular governor’s ability to stack the court. And they can impose mandatory retirement ages, which increases turnover. Mandatory retirement ages and fixed terms would give the public’s elected representatives more opportunities to influence the bench.

After Boehner’s crass attempt to have Netanyahu get even more standing ovations from the Congress in order to kill the negotiations with Iran, there’s some delicious irony in what has come next – and not least in Eli Lake’s and Josh Rogin’s prose:

The Israeli intelligence agency Mossad has broken ranks with Prime Minister Benjamin Netanyahu, telling U.S. officials and lawmakers that a new Iran sanctions bill in the U.S. Congress would tank the Iran nuclear negotiations … Evidence of the Israeli rift surfaced Wednesday when Secretary of State John Kerry said that an unnamed Israeli intelligence official had said the new sanctions bill would be “like throwing a grenade into the process.”

But an initial warning from Israeli Mossad leaders was also delivered last week in Israel to a Congressional delegation — including Corker, Graham, McCain and fellow Republican John Barrasso; Democratic Senators Joe Donnelly and Tim Kaine; and independent Angus King — according to lawmakers who were present and staff members who were briefed on the exchange. When Menendez (who was not on the trip) heard about the briefing, he quickly phoned Israeli Ambassador to the U.S. Ron Dermer to seek clarification.

Wouldn’t you have loved to have seen McCain’s face when the Mossad told him they do not think another war against a Muslim state in the Middle East is the best idea right now, when far more workable alternatives are still available? But the truth is that many inside the sane Israeli defense and intelligence communities – which were opposed to the Iraq War – really do believe that negotiating constraints on Iran’s nuclear capacity is in Israel’s interest and that war is not.

They don’t believe that new threats of sanctions will do anything but scuttle any chance of a peaceful deal. And that the subsequent war would actually accelerate Iran’s now-stalled and frozen nuclear weapon program, rather than remove the threat. America’s intelligence community believes the same, as does the British prime minister:

The Israeli view shared with Corker and other senators also mirrors the assessment from the U.S. intelligence community. “We’ve had a standing assessment on this,” one senior administration official told us. “We haven’t run the new Kirk-Menendez bill through the process, but the point is that any bill that triggers sanctions would collapse the talks. That’s what the assessment is.” Another intelligence official said that the Israelis had come to the same conclusion.

Everything else is dangerous ideological posturing that could up-end years of painful diplomacy and manage to unite the Iranian regime with the vast majority of its otherwise pro-American opposition. It would be lose-lose-lose rather than a still live possibility of win-win. And when the Mossad is saying that AIPAC is out of control, someone on Capitol Hill should perk up and notice.