Leave the judges alone

I saw a disturbing headline in The State the other day: “SC Supreme Court makeup may face GOP scrutiny after abortion ban struck down.”

I didn’t have time to read it at that time, so I emailed the story to myself, intending to write about it when I had time. Of course first, I had to read it.

Fortunately, the story wasn’t as disturbing as the headline. Still, I’m afraid Shane Massey is right in this prediction:

State Senate Majority Leader Shane Massey, echoing his statement last week that the court’s “decision will almost certainly result in the politicization of South Carolina’s judges to yet unseen levels,” said Monday he “will be amazed” if there isn’t political pushback over the way the Legislature vets and elects judges to the state’s high court…

Yes, I’m afraid so. Some will see themselves just as justified in making abortion a litmus test for court fitness as U.S. Senators on both sides of the issue have done ever since Roe removed the issue from the place where it should be — the political branches.

Because of what’s happened since 1973, public confidence in the very existence of an independent judiciary has been badly damaged across the political spectrum. And when that confidence is completely gone, we might as well close up this shop called the United States of America. The experiment in a liberal, representative democracy has had an impressively long run, but it would be over at that point.

When candidates’ positions on the most controversial political issue in the land becomes a condition for serving on the bench, it is over. I’ve been pointing this out for years on the federal level. The last 50 years have been pretty ugly.

We don’t need to be engaging in the same madness on the state level. South Carolina has enough problems without that.

I can understand that, after all these years of waiting, and finally seeing SCOTUS give legislatures the power to make the laws again, some lawmakers will be frustrated that another court is overruling them.

But the proper response to that is to work to shape legislation that the court will not dismiss as violating the state constitution. And yes, in this case, the law involved is the state constitution, not the federal.

Interestingly, unlike the federal version, the state constitution actually mentions privacy — it uses the actual word. (We can argue back and forth at another time whether “privacy” means “you can have an abortion if you want one.” But for quite some time, courts have assumed it does. This one certainly has.) Of course, you can try to amend that if you’d like. I expect that would be tougher than passing acceptable statutes, but that’s another legitimate path.

Just don’t pick judges based on whether they agree with you. Agreeing with you is not their job.

Oh, and one more thing: Not only would that approach undermine the rule of law, but it might not even work for you in the short run. I urge you to check out Cindi Scoppe’s latest column, which grows out of the court’s abortion ruling: “How the SC Legislature’s ‘conservative justice’ killed its fetal heartbeat law.

Oh, and as long as I’m pointing to stuff in the P&C, they have a news story that does what I actually feared the story in The State would do: It quotes lawmakers saying the very things that I dreaded, and which made me cringe at that first headline. This one is headlined, “Abortion ruling brings new scrutiny on the 3 candidates.

The State‘s story predicted it. The P&C‘s story shows it starting to happen…

7 thoughts on “Leave the judges alone

  1. Ken

    Will Folks quoted in recent article on the Murdaugh case:

    ” ‘South Carolina, [Folks] told me, ‘has an incredibly corrupt ruling class, and the Murdaughs were part of it.’ As Folks saw it, the system of selecting judges was largely to blame. ‘The judicial branch has become an extension of the political branch,’ he said. ‘We need to have judges chosen by people who don’t control their salaries, don’t set their office budgets, don’t decide on their futures.’ “

    1. Brad Warthen Post author

      And you’re saying you agree with Will, or not?

      And what alternative was he advancing? Not direct election, God help us?…

      Our system can always stand improvement. But that is most assuredly not the way to go — popular judges, rendering only popular rulings.

      Will refers to the “political branch,” forgetting there are two — although the executive has always been a very weak one in South Carolina. If there is a problem with political branches being involved, I suggest that the problem is that only ONE is involved. There’s no equal branch checking and balancing the legislative.

      Until Roe came along and made the country insane, mainly by distorting electoral politics from both ends of the issue, the federal system worked fairly well. If you wanted to choose a “reform” direction, I would recommend that one…

  2. Ken

    I challenge the assertion that abortion is “the most controversial political issue in the land.” National polls since 1973 have consistently shown NO popular majority for overturning Roe. Instead, the issue has been kept burning by a minority of moralizing anti-abortion zealots. And it is clear that their zealotry knows no bounds. In a case in Nebraska, for instance, a mother is being prosecuted simply for sending her daughter information about abortion pills in a PRIVATE Facebook conversation between the two of them. This shows that anti-abortion zealots are willing to invade private conversations and tear down the First Amendment itself in pursuit of their so-called “cause.”

    1. Brad Warthen Post author

      You “challenge the assertion that abortion is ‘the most controversial political issue in the land.'”

      And then you cite polling. I’m not sure why, since the madness has occurred at the actual electoral polls, rather than in opinion polls. There is no single issue more likely to define how a person votes for president, or for the U.S. Senate, or party identity (for those who go in for that sort of thing). What would be your nominee for the “most controversial political issue in the land?” Guns? Immigration? The national debt?

      Also, you tend to interpret the polling differently from the way I do. Pro-choice folks like to claim the largest group, the “legal only under certain circumstances” group, as being on their side, saying their argument is only with the much-smaller “illegal under all circumstances” group.

      Which is odd. Because I listen to my pro-choice friends, and I hear all the things they say in justifying their position, such as “my body” and “autonomy,” and “between me and my doctor.” And of course, all those ideas are completely inconsistent with allowing ANY limitations on the abortion decision. Such terminology is rather absolutist

      It seems rather obvious that most people, including a great number of people who called themselves “pro-choice” AND “pro-life” if forced to choose one or the other of those terms, could be described as “legal only under certain circumstances.” But of course, that’s not the way it plays in elections, which tend to be defined in ones-and-zeroes terms.

      Seems to me the only legitimate way to describe my own “pro-life” position would be “legal only under certain circumstances.” That’s because I would certainly allow the procedure when necessary to save the mother’s life. Other people would broaden that to include rape and incest. But those people are not in sync with Roe, either.

      I realize there ARE people who advocate “illegal under all circumstances” (a small number, according to the polls) but I wouldn’t call them “pro-life.” You can’t be “pro-life” and favor letting the mother die. I don’t see how that’s possible. But of course, that “certain circumstance” is a medical decision that lies far, far outside the notion of there being a sweeping “right to privacy” that requires that abortion be available to those who want one.

      Anyway, debate that all you like. I was talking not about the polling, but about the impact of the issue on politics. I just went on that digression with you in order to say you wouldn’t necessarily be on safe ground arguing it your way, either…

      1. Brad Warthen Post author

        And to get back to what I started to say in reply to you, what would be your nominee for the “most controversial political issue in the land?” Guns? Immigration? The national debt?

        The only one of those I can imagine being a competitor would be guns. The others have shifted over the past 50 years. Immigration was once a big concern for folks in the labor movement, and now it seems to be defined mostly by xenophobia. And concern over debt can affect politics in different ways, depending on which kind of spending you’d like to cut — the military budget, or social programs?

        Only guns come close to being anything like the kind of fundamental values issue — and one that has intensified on both ends of the spectrum in recent decades. But it doesn’t seem to make and break political identification quite as sharply as abortion has. Maybe that will change, with Roe gone. But I’m not at all sure of that…

    2. Bill

      When the idea struck him, nearly 50 years ago, Dr. Étienne-Émile Baulieu believed it could be revolutionary. Creating a pill that could abort a pregnancy would transform reproductive health care, he thought, allowing women to avoid surgery, act earlier and carry out their decisions in private.

      “When science meets women’s cause, it is irresistible,” Dr. Baulieu, 96, a French endocrinologist and biochemist often called the father of the abortion pill, said on a recent Sunday afternoon in his apartment in a century-old building a short walk from the Eiffel Tower.

      He had also hoped, as he wrote in a 1990 book, that by the 21st century, “paradoxically, the ‘abortion pill’ might even help eliminate abortion as an issue.”


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