On Roe, offer to compromise with Republicans, and vilify the conservative justices

It’s hard to focus as I struggle through my second round of Covid, but a few thoughts on Roe.


Josh Marshall has been advocating loudly for the Democrats to run this year on a pledge to restore Roe.  Maybe this is their best strategy.  But they should consider a compromise along the lines I suggested earlier – 15 weeks of unrestricted access, and then abortion available when things go awry (fetal defects, threat to health of the pregnant woman, etc.).  Democrats need to expand their coalition; turning out more voters in blue states won’t do the trick.  This means taking a deep breath and trying to work out a compromise that most voters can accept, and as I discussed previously second trimester abortions are in fact quite controversial when pregnancies are going smoothly.

Republicans know that they are in trouble on this issue.  One Republican proposal is for a national cap at 15 weeks.  Democrats should counter with a 15 week national standard coupled with reforms to guarantee access for low income women.  Of course some Republicans will go for much stricter limits or outright bans out of personal conviction or to placate their primary voters.  Democrats should take advantage of this by tacking to the middle – and endorsing a plan that could easily improve abortion access for the disadvantaged relative to the situation pre-Dobbs.


Manchin and Collins have taken a lot of heat for their (presumably feigned) surprise that Gorsuch and Kavanaugh would overturn Roe, given their blather about precedent during their confirmation hearings.  But this is a strategic error.

It is critical to discredit the conservative Justices as they continue their war on individual rights, the regulatory state, and (most alarming in my view) the electoral foundations of American democracy.  Instead of ridiculing Manchin and Collins, Democrats should be harping on the fact that conservative Justices perjured themselves during their confirmation hearings.  And there should be no doubt that they did perjure themselves.  Here is Paul Campos showing how to do this (ignore his sarcasm at the end):

When a judge says that a case is “settled precedent,” that has a fairly straightforward technical meaning in the American legal system, which is that the judge is indicating he or she won’t overturn the precedent, absent the development of presently unforeseen extraordinary factors. Otherwise the doctrine of stare decisis is essentially meaningless. Obviously no such factors are present here, so all these eminent jurists were simply lying under oath, which I realize somehow doesn’t count as perjury, because “everybody” knew they were lying at the time.

I’m sure telling Manchin to go fuck himself feels good, but who are we going to replace Manchin with?  Plus, Manchin might even support a 15 week compromise bill.  (I have no idea what Manchin is actually willing to support, but it’s a possibility.)  Attacking Collins might make sense if she runs for re-election in 2026, but in the meantime can we please focus on 2022?  And aim our fire at the conservative majority on the Court?

OK, I am going to go be miserable.