More on Abortion and the Filibuster

I should clarify my earlier post on abortion, which I think I wrote too hastily.  First of all, on how Democrats used the filibuster:  they didn't use it to filibuster Supreme Court nominees, but conservative judges who would have been successful supreme court nominees had they ended up on the Court of Appeals.  My take is that this meant a less conservative court than would have existed by the end of the Bush years; your mileage may vary.  It also means there are fewer lower circuits on which abortion opponents are likely to successfully press their quest.

Second, Kevin questions whether keeping Roe intact is really a minority view.  It depends on how you define it.  Roe polls well.  But the things that Roe has prevented legislatures from doing--like making abortion illegal in the second trimester--don't.  Even polls that show fairly strong support for Roe also show that most people think abortion should be illegal except in cases of rape or incest, when the mother's physical health is in danger, and when the fetus is severely deformed.

So if the challenge were a South Dakota style flat ban for all reasons, then yes, that would be unpopular.  But if the challenge were a law that outlawed second trimester abortions except in the abovementioned four cases, it would be fairly popular.

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But whether or not the Democrats actually succeeded in keeping the court on their side this time around, that certainly seems to be what they thought they were doing.   That was the text or subtext of all the tedious damn arguments about the filibuster, in which most sides were neatly flipped.  They didn't know how long a Republican administration would last, and so they found the filibuster a very valuable method of preventing the court from moving further to the right, by manipulating the makeup of the lower courts from whom justices are often selected.  Now, in hindsight, it seems that this wasn't maybe so necessary.  But the next time a Republican is in the Oval Office, you also won't know whether he'll be around long enough to finish stacking the court for a serious restriction of abortion rights, as well as other causes near and dear to liberal hearts.

As I say, over time I've come to think this is basically okay--and though I'm sure I'll be accused of hypocrisy, I don't see how it's hypocritical, since the filibuster is certainly not now helping Republicans block legislation of which I disapprove.  In government, I mostly prefer incremental change to radical change, and supermajorities to the tyranny of the 51% over the 49%.  Others feel differently.  It's one more way you have to ask whether you want to live in a country that's more like Western Europe, or not.  Our way has its problems--but I'm not sure the problems are greater than they would be if incoming majorities could force sweeping change on substantial minorities.

Update:  I should also say, I'm not accusing either Drum or Yglesias of hypocrisy; Yglesias has been consistently against the filibuster, and I have no idea what Drum's position is.  I just think it's a mistake to focus on legislation, and ignore court appointments, which have increasingly been shaped by the filibuster.