October 2, 2008

Sarah Palin was absolutely right to decline to name Supreme Court cases -- other than Roe v. Wade -- that she disagrees with.

There's a lot of mockery of Sarah Palin's performance responding to Katie Couric's questions about Roe v. Wade. (There's a video clip at the link, with a commercial.) Let's read the transcript:
Couric: Why, in your view, is Roe v. Wade a bad decision?

Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.
The question was why is Roe v. Wade a bad decision, and as a law professor, I would like to hear an answer about how the decision was badly reasoned, how the Supreme Court had to redo its own work (in Planned Parenthood v. Casey), and so forth, but Palin jumped right to the political effect of the decision and the usual notions about the benefits of federalism.

(Note: Without Roe, Congress would have the opportunity and the incentive to pass laws either limiting, banning, or preserving abortion, so the matter would only be left to the states if Congress exercised restraint or if the Supreme Court managed to limit the commerce power.)
Couric: Do you think there's an inherent right to privacy in the Constitution?
Couric tries to focus Palin on constitutional law. She is also inviting Palin to reject an important category of constitutional rights.
Palin: I do. Yeah, I do.
Palin avoids stepping into a pit there.
Couric: The cornerstone of Roe v. Wade.
Couric seems to suggest that if you believe the Constitution protects the right of privacy, you will need to accept every right that is argued to be an example of that right. That is entirely incorrect. (For example, the Supreme Court unanimously rejected the right to physician-assisted suicide, despite the argument that it fit the right to privacy.)
Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.
Now, that's an example of Palin's garbled syntax. She's also repeating herself and being verbose, but the message I get is that Palin is not going to do any legal analysis, and she's going to stick to the basic Roe v. Wade talking point that abortion should be handled at the state level.
Couric: What other Supreme Court decisions do you disagree with?
This is a clunky question, and it sends up an obvious red flag after the last question. Couric wants to pull Palin into a discussion of constitutional law. Couric let it show that she wants to expose areas of ignorance. Couric would have earned my respect if she had chosen instead to pursue the question of why a right of privacy matters -- why does Palin support it? -- and what makes abortion different. Imagine a serious discussion about that. Instead, I sense that Couric is hungry for mistakes, and Palin's shaky response reveals that she knows she's in danger of making mistakes:
Palin: Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …
Translation: I'm not going to answer the question, so I'll just repeat myself about how wonderful federalism and add that American history is great.

When you're talking about bad Supreme Court cases, it's not a good time to call American history "great," since the worst decisions entail slavery and segregation, which were, to say the least, not great.
Couric: Can you think of any?
The gotcha is dripping from her lips.
Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.
Now, it would have been better to go back into history -- Palin brought up history -- and name a couple of the notorious cases that everyone acknowledges were bad. I suspect that Palin worried that she might get a case name wrong or that she'd be quizzed about exactly what happened in those cases and that she had a risk-avoidance strategy. Stalling for time, she began to repeat the old federalism point -- "best dealt with on a more local level" -- and then she shifted to a perfectly good excuse for not accepting the invitation to discuss Supreme Court cases: An executive official -- a mayor, governor, or vice president -- should respect the authority of the Supreme Court as it has articulated the meaning of the law.

If Palin had named some current cases -- as opposed to the historical cases that the Court itself has already disavowed -- that she disagrees with she would be claiming greater expertise in legal analysis than the Court itself or, alternatively, she would be saying that the Supreme Court's interpretation of constitutional law is not final.

Either proposition would be difficult to maintain and should not be attempted in an impromptu style in a high-stakes situation. This is the sort of thing a Supreme Court nominee facing confirmation hearings would prepare for intensely and face with trepidation. Palin deserves credit for seeing the situation for what is was and opting out.

It is difficult enough to maintain that one Supreme Court case is wrong, and Roe is that one case. The decision to oppose that case has been carefully thought out and is exceedingly important to Palin and others. (Note: I support abortion rights.) Roe stands apart from everything else because it entails what Palin, I presume, sees as a profound moral wrong: the continuing widespread murder of innocent babies. There are not some additional cases to toss in alongside Roe. The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law. And that is exactly what Palin said.

UPDATE: I address Couric's corresponding interview with Joe Biden here.

100 comments:

Simon said...

She has already said in a television interview that she was disappointed with the Exxon decision, but I don't remember if she went further and said she thought it was wrong, which is of course the relevant issue.

"Note: Without Roe, Congress would have the opportunity and the incentive to pass laws either limiting, banning, or preserving abortion, so the matter would only be left to the states if Congress exercised restraint or if the Supreme Court managed to limit the commerce power.)"

And, of course, in the time frame we're talking about - circa Roe - the court's commerce clause doctrine was essentially "do as you will." This was two years before Rehnquist ran up the flag in his Fry dissent, even. So at that time, even though I think this is wrong, Congress might well have acted and might well have gotten away with it. Moreover, it's far from clear that without the galvanizing effect of Roe, we would have gotten the justices (or their kind) who voted to impose even the incredibly modest restrictions on federal power of Lopez and the sovereign immunity cases, so it doesn't even necessarily follow that without Roe, Congressional legislation on abortion would have been invalidated by the courts anyway.

mcg said...

Well, of course, Verso, LoafingOaf, Michael, etc. will all mock you for engaging in hilarious spin.

But how about the premise that it is Biden, not Palin that ought to be embarrassed by his answer to the question? NRO tackles that claim here and here. Kathryn Jean Lopez sums up the difference this way:

"No on expects Biden to ever make sense."

Sloanasaurus said...

Palin should have asked Couric if she knew how oil was refined into gasoline or what the difference is between sweet and heavy crude.

Slim Tyranny said...

Couric asked Biden the exact same question ("Name a SC case you disagree with"), and it clearly wasn't meant as a trick/gotcha question. It allowed the candidate to talk about a case representative of their thinking on the big legal issues of our time. So, Biden talked about the Supreme Court striking down the Violence Against Women Act, and how he believed that Congress had satisfied the requirement that interstate commerce be properly implicated in order for there to be federal standing to write that kind of law. The Supreme Court disagreed and struck down the law --- and Biden disagreed with that conclusion.

Palin? She can't generate a case, or is too convinced it's a "gotcha" question to even try.

IT WAS NOT A TRICK QUESTION. It was not a "gotcha" question, it was not a pop quiz. For anyone halfway intelligent, it was a chance to talk the Supreme Court, politics and basic ideological views of how the Supreme Court should operate.

Why are you defending Palin? She wasn't deferring to answer in order to avoid a dastardly trap set by Katie Couric --- she just didn't have the knowledge to come up with an intelligent answer. Your back-bending spin in order to pretend that Palin was really five steps ahead of Couric and had substantive issue with answering is patently absurd.

Ann Althouse said...

I'm working on a post on the Biden interview about Roe, so hang on a few minutes and I'll have a better place to write about that.

mcg said...

Biden seems like the perfect encapsulation of that Ronald Reagan quote: "The trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so."

I do agree with the general notion that Sarah Palin can't seem to play these gotcha games. A politician ought to be able to parry just about any question that comes her way. But the way Biden does it? Make up a bunch of crap? It only works because Couric is too much of an idiot herself to catch it, or too in the tank to call him on it.

mcg said...

Ah, gotcha Ann. Looking forward to it.

section9 said...

Good for Sarah! She gets the essential fact that Roe violated the Chain of Being of the Constitution. An issue of vital national importance, abortion, was hijacked by the SCOTUS and decided by the Nine without allowing the issue to be resolved politiically at either the State or Federal levels.

Thus, the issue remains unresolved and in the Street, in the hands of the extremists. She, of course, prefers that it be decided at the State level.

dbp said...

Hmmn, we will ask BOTH candidates for VP for a legal opinion: One has been to law school and one has a degree in jouralism. That seems fair.

Arturius said...

She's also repeating herself and being verbose, but the message I get is that Palin is not going to do any legal analysis, and she's going to stick to the basic Roe v. Wade talking point that abortion should be handled at the state level.

Professor, is it really fair to expect a legal analysis from someone who is not a lawyer?

The Exalted said...

to those with a clue, palin had no idea. her answers were garbled and nonsensical because her thinking is garbled and nonsensical. she had no answers.

she agreed to a right of privacy because she had no idea what couric meant by that phrase in a constitutional context.

or maybe she blinked the case names, should give it another watch!

Yachira said...

Why would any non-lawyer be walking around with a bunch of Supreme Court decisions swimming around in their head that they're prepared to discuss at any length for the entertainment of Couric?

A better question is, how is it that an attorney like Obama apparently has little understanding of our basic Constitutional documents?

Steve said...

Why is it your reflexive stance to defend Sarah Palin? Is it because she's a woman? Would you let a man get away with such an obvious lack of knowledge on a subject that a President should know something about. Does it not bother you that she seems so incurious and has given so little thought to these issues, that she is only able to mouth right-wing talking points about Roe v. Wade.

And how can such a softball question as Couric asked be considered a "gotcha" question. Is it because she couldn't answer it? If Couric asked her what 2+2 equals and she didn't know, would that be a "gotcha" question.

It seems to me when it comes to women you suffer from the "bigotry of low expectations."

downtownlad said...

She obviously doesn't know any other Supreme Court cases.

Was it really that hard to say "Kelo!".

Or even better yet "Oh I don't know, I'm not a lawyer remember". I would have had more respect for teh truth.

Looking forward to hearing about how Biden's answer was horrible and ignorant.

PJ said...

I don't think the Professor claimed Couric's original question on this subject was a gotcha; I believe the claim is that the followups took on that character.

Anyway, is it entirely fair to pose this question to a lawyer and a non-lawyer and expect comparable answers? If not, the whole setup is questionable. (Of course, the scales could be evened out by asking both of them a searching question about energy policy as well, perhaps something about coal?)

Slim Tyranny said...

And for those of you who think that this question was unfair because Palin doesn't have legal training, I just have to laugh. The President nominates federal judges --- does that responsibility fall away if the President didn't get a law degree along the way?

An intelligent non-lawyer who was engaged and paid attention to important political matters "in the great history of this great country" would be able to answer that question with relative ease.

Palin had plenty of knowledge of Roe v. Wade, and she's not a lawyer. Why does she know about that case? Because it's a landmark case that is important to her as someone who is pro-life. It's not unreasonable to ask a question about the Supreme Court in hopes that a potential VP would have additional interest in major legal decisions in "our great history."

Really, the second most revealing part of Palin's performance is how much it tells us about the devout watercarriers who will say anything to prop up someone so mediocre.

goesh said...

Black robes remind her of crude oil headed south, nothing more, the woman is too practical for the Ivy league and wasn't about to beleaguer all the working stiffs by being uppity and citing - no Sir! Sarah aims for the purses, wallets, gonads and vaginas.

PJ said...

dtl, you make a good point about Palin's reluctance to just admit it when she lacks some relevant factual knowledge. I agree that her efforts to cover up lack of knowledge are way worse than forthright acknowledgement would be.

Slim Tyranny said...

PJ: "I agree that her efforts to cover up lack of knowledge are way worse than forthright acknowledgement would be."

Well, admitting you don't know an answer to something is tough to do. And when you know legions of conservatives (from the pages of the Wall Street Journal, to the National Review Online, to anonymous commenters) will defend your non-answer and happily paint it as, REALLY TRULY, a genius answer, then why ever straight-up admit ignorance?

Overall, though, you're right, the efforts look bad. She is nonsensical and spouting gibberish. Will the diehard conservatives will give her a pass, these easily passed along soundbites of absurdity really hurt her with independents. And that probably hurts more than simply being honest and saying "I don't know."

downtownlad said...

Or just say "I can't recall the names of specific cases, but there are many times where we've had an activist court, and I think that's wrong. We shouldn't have judges making laws."

The talking points aren't that difficult. And its shocking that almost every commenter on, oh let's say this blog, could give a better answer.

Dust Bunny Queen said...

Or even better yet "Oh I don't know, I'm not a lawyer remember". I would have had more respect for teh truth.

I agree with DTL ....OMG is the end near!!

When you don't know or it is outside of your area of expertise just say so. How many people outside of political junkies and lawyers can name off more than one or three Supreme Court cases that they didn't agree with? And describe exactly why they didn't agree?

She needs to just be herself and not some repackaged clone of every other sleazy politician. At least if she goes down in flames as her own person, she can be proud of herself. If she allows herself to be shackled by "handlers" and goes down in flames she and we will be second guessing the results. Was her performance her own or manufactured??

Just be yourself and refuse to answer gotcha questions.

Michael McNeil said...

Then there are the lawyers (commenters not principals) over at the Volokh Conspiracy who argue — seemingly in all seriousness (e.g., this thread and even this one) — that only lawyers are qualified to serve in the government.

mcg said...

Me three. I really don't think there are any "gotcha" questions. Just take a pass, redirect, or make up shit like Biden does.

Peter V. Bella said...

In the grand sceme of things, does it really make a difference if she knows SCOTUS rulings like the back of her hand? The only important thing is she is willing to abide by them as an elected official.

The rest is unmitigated horse shit.

downtownlad said...

Although I really don't think Katy Couric was expecting that answer.

I think she was expecting "Griswald vs. Connecticut" or "lawrence V. texas" or something like that - which she would spin to make Palin sound like an extremist.

UWS guy said...

Years ago, when I took the foreign service exam (trying to get into the diplomatic corps). They asked me for specifics on what magazines I read, to name a few amendments, and to discuss a few supreme court cases.

They figured if I couldn't talk about what was in the Constitution then I probably really didn't care about our Constitution and they wouldn't want that kind of person sworn to protect it.

Simon said...

I do think Palin's exactly right about Roe and federalism, by the way, and I thought she gave a good answer right up until Couric asked about the right to privacy. I think she's wrong. That said, I respect that she has her view, and it's a view shared by a great number of other highly erudite and respected persons. In any event, I can live with it as an answer because I think someone with my views on the issue - both specifically and generally, it being almost heresy in this most liberal age to suggest that Constitutionally-protected rights can't be, shouldn't be, and are not coextensive with natural rights - likely wouldn't get elected these days. And I want her elected.

UWS guy said...

For Bush (sadly) and Palin and others it's about "protecting this great country". That's bullshit. Protect and defend the Constitution motherfuckers!

niklas.d.olesen said...

DONT FIGHT - DANCE!!!

http://www.youtube.com/watch?v=JulhdYv-R4k

UWS guy said...

I have you surrounded Simon, give up!

jdeeripper said...

Couric: What other Supreme Court decisions do you disagree with?

Palin was unable to recall HER OWN COMMENTS about Exxon Shipping v. Baker from June of this year.

She clearly knows about this Supreme Court case and disagrees with it.

mcg said...

DTL, I really don't get it. You're sounding reasonable, as you have been when talking about the bailout. Partisan, sure, but who isn't, and not nearly so way-out combative about it. You totally avoided the Sarah Palin and homosexuality thread.

What's up? Come on, admit it, you've found that special someone. You're in love. :)

Doesn't matter what it is, really, just keep doing it.

Fred4Pres said...

Victor Davis Hanson on Palin v. Biden

downtownlad said...

I've always been totally reasonable. people don't like it when I call them names though.

I was at work when the Palin and homosexuality thread came up. Remember - I'm in a way different time zone now.

Anyway - I like Ann's insinuation that Palin is a closet carpet muncher. A lipstick lesbian for VEEP. Who would have guessed.

Shanna said...

Professor, is it really fair to expect a legal analysis from someone who is not a lawyer?

I don’t think so. What does it matter? She had one, Roe v. Wade. Other potential answers would have been Plessy v. Ferguson (I had to look the name up, but I remember the case) and possibly Lawrence, which many people had issues with. But she is not a lawyer, and if grilled, she would not have been able to give lawyer type answers.

I agree she needs to figure out how to answer these questions a little better, but hers was the answer of an executive branch politician and I think it was acceptable.

Triangle Man said...

How about Kelo? Do Palin and Biden agree with that?

Trevor Jackson said...

Simon, I appreciated your response in the other thread squaring the belief in a federal right to privacy with a belief that Roe is a bad decision. Are you assuming then that Palin has made this move intellectually? Why then wouldn’t she explain that in response to Couric’s assertion that this right is the foundation of Roe? Wouldn’t it be better to explain how the right to privacy is immaterial in light of the “unique act”? There’s pretty serious repercussions for her leaving that dangling.

Apathetic Citizen said...

"Garbled syntax"

Aside from being one of my favorite Dr. Seuss animals, garbling for politicians snytactically is for them a skill that is good.

Shanna said...

possibly Lawrence

Wait, I think I meant Kelo here. Ah the perils of being a non-lawyer!

UWS guy said...

Does Camille Paglia still like palin?

Maybe Andrew Sullivan is wrong on this point. He keeps saying "Where is her gay friend?" She always mentions her but no one can find her?

Maybe Sarah's gay friend is Sarah....

Dear Camille,

I have this gay...uh...friend. She really loves "hunting moose" if you get my drift. She was wondering if you'd be keen to meet her? She's dying to get to know you. Do you play flute? This one time at band camp she...

Anyway, not important. Here's "her" number.

Sincerely,

Governor of Alaska

Simon said...

UWS guy said...
"They figured if I couldn't talk about what was in the Constitution then I probably really didn't care about our Constitution and they wouldn't want that kind of person sworn to protect it."

But that's an awkward point to make. There are some things that are obviously in the Constitution. There are some things that obviously aren't (at least, not yet). And then there are some things that are somewhere in between - harder cases. The Constitution gives it to Congress to regulate interstate commerce - does that imply the so-called "dormant" commerce clause, restricting the power of states to pass laws that have the effect of restricting interstate commerce? To what extent? You can look at United Haulers a couple of terms ago for an example of how complex the question can get, and it's going to get even more complicated when they face the 50-50 question raised at argument in that case. The Fourth Amendment protects against unreasonable searches and seizures - but does that apply at the border, as in the Ramsey case? What does it mean for monitor of electronic data transmission, as in statutes like CALEA? The states retain their sovereign immunity; do they lose it when they act as a market participant, as was rejected in College Savings Bank?

Some questions are obvious at one level of generality, but not at others. It would be banal to ask Palin if she believes in the separation of powers. But if she couldn't talk about what is in the Constitution so far as Printz is concerned, does that mean she's defective? I would be willing to bet that you could fire a cannon loaded with grapeshot into the Hall of the House and not hit anyone who could tell you what Fitzpatrick v. Bitzer holds. There are some questions that any American should be able to readily answer about the Constitution, and some that should be demanded for holding public office -- I entirely agree with you that people swearing an oath to the Constitution should know quite well what they are swearing to uphold -- but there are some questions that are much harder, that fall into a gray area as to what the Constitution says.

Eric Muller said...

Ann, you wrote:

"It is difficult enough to maintain that one Supreme Court case is wrong, and Roe is that one case. The decision to oppose that case has been carefully thought out and is exceedingly important to Palin and others. (Note: I support abortion rights.) Roe stands apart from everything else because it entails what Palin, I presume, sees as a profound moral wrong: the continuing widespread murder of innocent babies. There are not some additional cases to toss in alongside Roe. The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law."

I'm struggling to understand whether, in context, this paragraph reflects your views, or Palin's views, or those of the movement with which you see Palin affiliated, or something else.

You know, of course, that Justices on the Court have had no trouble at all identifying other decisions equal to Roe in their wrongfulness. In Stenberg v. Carhart, for example, Justice Scalia (who I imagine shares Palin's view that abortion is the murder of babies) said the decision (and by implication Roe itself) were on a level with Dred Scott and Korematsu.

So I'm trying to understand whether you think that Roe is unique in its wrongfulness, or whether you think that those who oppose Roe think that Roe stands alone in its wrongfulness.

(In either case, Scalia's opinion in Carhart suggests that this view of Roe's singularity is mistaken.)

Paddy O. said...

Ann, given that Palin was in charge of dealing with Alaska, and it was her duty to know the issues related to that state, I'm curious if there are particular Supreme Court cases that relate specifically to Alaskan issues.

My sense is that she knows what she has been put in charge to know, rather than spending her time in her present position running for another. How she grasps her particular issues tells us how she could do on the next level.

Paul Zrimsek said...

If Palin had named some current cases -- as opposed to the historical cases that the Court itself has already disavowed -- that she disagrees with she would be claiming greater expertise in legal analysis than the Court itself or, alternatively, she would be saying that the Supreme Court's interpretation of constitutional law is not final.

Is this necessarily so? Surely I can believe the SC got it wrong in a particular case while granting them greater legal expertise in general. This is doubly true if you believe-- as I, and presumably Palin, believe about Roe and its successors-- that the decision in question was wrong because it was activist; i.e., that the justices consulted their policy preferences instead of their legal expertise. (Think of the line in Scalia's Casey dissent about how the public was willing to leave the Court alone so long as we believed they were doing lawyers' work.)

Of course the finality of a Supreme Court decision is a different thing from the correctness of it anyway.

1jpb said...

How about a side by side parsing that also looks at Biden's answer to the exact same question?

It be fun to see Athouse point out the legitimate issues with Biden's answer. Somehow I doubt that she'd apply her Palin-hackery-defensive-filter to defend him. (At least, I hope she wouldn't, this level of hackery is sad.)

Anyone think that Althouse is using this post to fish for links to right wing sites? Duh.

P.S.
I do think it matters that Palin can't answer this question. But, I'm much more troubled by her love of BS. Time and again she feeds the public BS and lies, and we're suppose to say oh she's "Jill Sixpack," it doesn't matter if she tries to fool us.

To this I say; FU: Joe and Jill Sixpack are the least likely folks to get by with BS. They either show up and know what they're doing or they will be Joe and Jill NoJob.

Palin's SnowJob wouldn't work for a single second for real working people. And, it's immensely insulting to the so-called Joe Sixpack folks for the edumicated Palin supporters (and Palin) to assume that real working folks have anything in common with a BS artist who is using BS to advance herself as the a VP candidate.

Funny how the cry baby "non-Sixpack" Palin supporters are oblivious to what it means to do real work, since they themselves work in a world of on-the-job politicking and BS; they don't know that in many ways this is the antithesis of a "Sixpack" working experience.

Simon said...

Trevor Jackson said...
"Simon, I appreciated your response in the other thread squaring the belief in a federal right to privacy with a belief that Roe is a bad decision. Are you assuming then that Palin has made this move intellectually?"

I think we can assume it without deciding. I agree with you that it would be better for her to have explained that point; that said, it seems reasonable to assume that she doesn't regard two positions as being in tension. When many people would argue that those two positions aren't in tension, why assume cluelessness on her part?

Ignorance is Bliss said...

As much as I like Sarah Palin, I've been very disappointed in her interview answers. I would much rather her admit to not knowing something than to fumble around for a non-answer.

She certainly appears to be underqualified for president.

Having said that, I still believe that having her as a failure of a president would do less long-term harm to the country than having Obama as president.

An Edjamikated Redneck said...

Simon, on the right to privacy, i would feel that the 4th Amendment would give us a right to privacy in general, but not to be construed to allow a medical proceudre that would involve at least one other innocent life, at least form government intrusion.

Bear in mind I am not a constitional scholar, and do not have your level of study and expertise, but based simply on my reading of the words. Why is my reading of the 4th Amendment wrong?

Heem's World said...

LMAO... Ann, you are trying too hard here... she botched the question...

Trevor Jackson said...

"When many people would argue that those two positions aren't in tension, why assume cluelessness on her part?"

Because many people do argue that they're in tension. Couric, for one. And many pro-life folks do too.

Simon said...

Paddy O. said...
"[G]iven that Palin was in charge of dealing with Alaska, and it was her duty to know the issues related to that state, I'm curious if there are particular Supreme Court cases that relate specifically to Alaskan issues."

Alaska v. United States, 545 U.S. 75, 125 S.Ct. 2137 (2005), springs to mind. Recent, albeit not terrifically important.

Arturius said...

I don’t think so. What does it matter?

I think you're missing my point. Althouse expected or wanted a legal analysis rather than Palin's talking points. Well absent a law degree, Palin's 'legal analysis' would amount to nothing more than her opinion would it not? Exactly how many non-lawyers, including elected officials have actually sat down and read a couple hundred pages of USSC decisions? Frankly I don't expect her or any Governor to be walking around with a well formed 'legal analysis' of Supreme Court opinions in their head.

Joseph Hovsep said...

There is plenty of critical commentary out there already so I suppose this analysis adds some value to the public reaction, but this is just a bizarrely generous reading of Palin's responses.

I think its pretty clear that Palin did not see the connection between a constitutional right to privacy and Roe v. Wade, which is true of the general public, even abortion activists on either side. But I think its a pretty key idea that should be understood by someone who might have the authority to appoint federal judges.

I don't see why it is inappropriate for a politician running on a presidential ticket to express views on constitutional law, even if those views diverge from current caselaw. In fact, it seems quite common that politicians and activists on both sides publicly fret about the ideological direction of the court.

"The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law."

If that's what she meant, then that's what she should have said. But that's NOT what she said.

And if she has some principled objection to answering a question, why not just say so?

I'm not saying Biden did an amazing job (or that Couric shouldn't have pushed him further and both of them in different directions), but he certainly seemed to have a real understanding of the questions and articulate and fluid answers.

Mixalhs said...

Ann, I'm disappointed (and I'm sure your not surprised).

Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.

Now, that's an example of Palin's garbled syntax. She's also repeating herself and being verbose, but the message I get is that Palin is not going to do any legal analysis, and she's going to stick to the basic Roe v. Wade talking point that abortion should be handled at the state level.


That's your best comment. Garbled syntax? The problem is that this makes no sense as a matter of fact. That is, if Palin believes there is a federal constitutional right to privacy, then it makes no sense to "leave it up to the states." The states are not the final arbitrers of the United States Constitution. If she believes in a right to privacy, then she necessary must believe that the Supreme Court has the power to override local laws that violate it.

Of course, that doesn't mean she has to support Roe v. Wade. She can believe that their is no right to privacy in that particular instance. I'm not saying that. I'm simply pointing out that what she said demonstrates that she has no idea how the Constitution interacts with state (or federal) legislation.

Simon said...

An Edjamikated Redneck said...
"i would feel that the 4th Amendment would give us a right to privacy in general ... Why is my reading of the 4th Amendment wrong?"

The Fourth Amendment protects particular privacy rights, as does the Third Amendment, and (at least arguably - and argued by Justice Douglas, in Griswold) the self-incrimination clause of the Fifth Amendment. It's a big jump, though, from particular rights that can be characterized as involving zones of privacy to a generalized - and necessarily amorphous and thus malleable - "right to privacy." Inferring a general exception from specific exceptions is, I think, very different to inferring a general structural principle from specific grants of power, which we do when we look at the structural Constitution and describe it as embodying (for example) federalism and separation of powers even though those words aren't used.

I realize that posting a link might be considered a cop out, but there really is nothing I can say that is more eloquent, concise or comprehensive than Justice Black's dissent in Griswold, and I strongly urge everyone to read it, and I would offer what Black (and to some extent Stewart) says in that case as the answer to your question.

Chocoholics said...

Speaking of Garbled Syntax.. I hear that someone found Sarah Palin's flash cards that she's using to prepare for tonight's debate...

Simon said...

Mixalhs said...
"I'm simply pointing out that what she said demonstrates that she has no idea how the Constitution interacts with state (or federal) legislation."

Even by your own account, it demonstrates no such thing. She says that abortion should be left to the states, she says that she believes that the Constitution protects a right to privacy, and she says (albeit implicitly) that she doesn't believe that the right to privacy covers the right to abortion. If her view is that the federal Constitution allows states to regulate abortion, then how does what she said evince a lack of understanding of civics 101?

holdfast said...

Maybe Palin should have asked Couric what cases she diagrees with, and Bush v. Gore doesn't count. Couric has never struck me as all that bright, so I pretty much have to assume that someone fed her the questions - which may be why she didn't know when to call B.S. on Biden.

That said, how hard would it be to prep her on a few cases - Kelo and Lawrence would be a good start, maybe Kennedy since it is recent.

Zachary Paul Sire said...

Someone please explain how asking the potential leader of the United States about law is "gotcha."

Anyone who calls this line of questioning "gotcha" is stupider than Palin and/or lying to excuse Palin's disastrous response.

Andy Hilal said...

>>Palin deserves credit for seeing the situation for what is was and opting out.

You've described some beneficial side effects of not answering, but you ascribe more understanding and choice to her than she deserves. She didn't opt out of anything. She drew a blank, mentally. You make a good argument that she could have gotten into trouble by firing a live round, but let's be honest about the fact that this was a stumble and not a savvy dodge.

Floridan said...

dbp: "Hmmn, we will ask BOTH candidates for VP for a legal opinion: One has been to law school and one has a degree in jouralism. That seems fair."

There both applying for the same job.

If you were running a restaurant and were looking for a chef, would you be unfair asking one applicant how to prepare a demi-glace because he didn't attend culinary school?

I find it amusing that all these people who otherwise are upset with modern society's slide toward a lack of standards and an acceptance of mediocrity seem to be OK with it in this case.

Hoosier Daddy said...

Someone please explain how asking the potential leader of the United States about law is "gotcha."

You're right Zach, it isn't. Palin, being a non-lawyer, should have been able to rip off a legal analysis of Roe v Wade with the same expertise of Simon or Althouse. Because every single President before her was an expert in constitutional law. Her inability to cite a single USSC which we all know, every other state Governor can do in their sleep is yet another example that the only thing she is capable of is being a baby maker.

Case closed.

Trumpit said...

"I believe in a culture of life..."

As she pulls the trigger on her high-powered rifle with scope to slaughter helpless mammals for sport. She believes in gruesome, bloody, death by her own hand. Just say no to premarital unprotected teenage sex. Say no to illegal drug use. Just say no to hunting for sport. Even Nancy Reagan had a conscience, as lowbrow as it was.

UWS guy said...
This comment has been removed by the author.
Arturius said...

If you were running a restaurant and were looking for a chef, would you be unfair asking one applicant how to prepare a demi-glace because he didn't attend culinary school?

And I think if we were looking to appoint someone to the court that would be a perfectly sound analogy. The problem is that the neither the President nor VP make law or should be interpeting law even if they have a law degree. That's what they have counsel for.

I'll ask it again, is it really reasonable to ask a non-lawyer, presidential candidate notwithstanding, to provide a legal analysis of a USSC case? Also, is it relevant to the job as neither the President or VP do not make or interpret law?

Hoosier Daddy said...

UWS Guy Hoosier, why would Sarah Palin want a job, the responsibility of which is defending a document she doesn't care to read?

I'm sorry, can you please point me to the Roe v. Wade amendement in the Constitution? It's been awhile since I read it so I may have missed that addition.

Perhaps if Couric asked her what she thought of the (insert number) Amendment and Palin gave her a moose in the rifle sights look then you may have a point.

Trumpit said...

I think the Supreme Ct. needs to reaffirm Row by offering free abortions for poor women in Scalia's chambers.

Synova said...

She has already said in a television interview that she was disappointed with the Exxon decision, but I don't remember if she went further and said she thought it was wrong, which is of course the relevant issue.

She said in an interview before the decision that she felt it was wrong to take this long to be resolved because it causes people to loose faith in the court system and in the concept of justice.

I think that is very true, no matter if the original ruling was a good one or not. People don't trust the courts to rule fairly. Period. A big part of that is the time it takes to accomplish anything at all. The people who were hurt by the oil spill and who were awarded the damages... a third of them are dead. Of old age.

The basic social contract between the people and courts can't stand up to this sort of thing and it *will* break down.

Sarah Palin seemed to understand this basic reality about human nature and human reaction. Have the facts of the case changed in 10 years? There is no excuse to deny people, or corporations, the right to a speedy trial and speedy resolution. When the court system fails to uphold it's end of the bargain, there is no reason for people to uphold *theirs*, which is to give up on vigilante justice and vendetta.

Synova said...

Peirce vs. the Society of Sisters.

That's the only other... oh, Brown vs. Board of Education?...

Anyhow... I think I pay at least a little bit of attention to what is going on and what is or is not considered unconstitutional, but I know about Peirce vs. the Society of Sisters (if I have not totally garbled that) because I homeschool so I know what that ruling was about, which state it originated in, and what the result was.

Maybe Althouse knows, too, because she teaches Constitutional Law but how many of the other people here have ever heard of it?

Or care?

Zachary Paul Sire said...

Also, the title of this post says that Palin "declined" to answer the question. Ha ha.

Peter V. Bella said...

As she pulls the trigger on her high-powered rifle with scope to slaughter helpless mammals for sport.

For food, you blithering idiot.

Donn said...

Personally, I think this sums up Palin pretty well:

What is most striking about her is that she seems perfectly untroubled by either curiosity or the usual processes of thought. When answering questions, both Obama and Joe Biden have an unfortunate tendency to think on their feet and thereby tie themselves in knots: Palin never thinks. Instead, she relies on a limited stock of facts, bright generalities and pokerwork maxims, all as familiar and well-worn as old pennies. Given any question, she reaches into her bag for the readymade sentence that sounds most nearly proximate to an answer, and, rather than speaking it, recites it, in the upsy-downsy voice of a middle-schooler pronouncing the letters of a word in a spelling bee. She then fixes her lips in a terminal smile. In the televised game shows that pass for political debates in the US, it’s a winning technique: told that she has 15 seconds in which to answer, Palin invariably beats the clock, and her concision and fluency more than compensate for her unrelenting triteness. (Jonathan Raban)

However, that being said, I have read whole books on Supreme Court rulings, and off the top of my head could probably not name another case except Roe either.

Trumpit said...
This comment has been removed by the author.
Trumpit said...

You name-calling slut, Lower Middle Class Guy. How is your emphysema doing? Cough for me, loser boy. Think of me every time you feel like a smoke or have to cough your fluid-filled lungs out. Respect mother nature or she'll have something unpleasant in store for you like deadly lung cancer. RJ Reynolds loves putzes like you that contribute to their bottom line. The cancer ward is happy to take your insurance. The public is not so happy that you are making them pay for your self-inflicted condition requiring medical treatment. You communist putz, you, spreading the financial pain around because of your addiction to nicotine and your utter foolishness. Move to the communist Cuba, and have a stogie.

Simon said...

Synova - well, Pierce, and another case called Meyer v. Nebraska, are important landmarks in the development of that most misbegotten and corrosive doctrine, so-called "substantive due process" (which, of course - and I'm not kidding - naturally gave rise to the corollary doctrine of "procedural due process"; you couldn't make this stuff up). It's a way station on the road to Roe, but I don't think it's that surprising if normal people don't know it. And if those cases are "road to," the same applies to "road from": Consider that most people know Brown, but how many people know Cooper v. Aaron or Griffin v. Prince Edward County Sch. Bd. (source of Black's stinging "the time for 'all deliberate speed' is over, so get the hell on with it" remark (I'm paraphrasing)).

Zachary Paul Sire said...
"Someone please explain how asking the potential leader of the United States about law is 'gotcha.'"

We should definitely be grilling Nancy Pelosi on this stuff. When's her interview with Couric? After all, if your argument goes not to Palin's ability to serve as veep, but rather, her ability to execute the prime function of the veep and transfer to a higher post. You're saying we need to grill Palin in detail because she will be only a heartbeat away from the Presidency. We should keep in mind that Pelosi is only two heartbeats away. Let's hear her answers.

Simon said...

Trumpit said...
"I think the Supreme Ct. needs to reaffirm Row [sic.]...."

In the matter of Row v. Wade, I believe in checking how deep the creek is before making the decision.

The Exalted said...

"The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law"

what's your point - that therefore nobody can criticize a supreme court ruling? in every non 9-0 decision at least one justice of the highest court is expressing his/her view that the majority got it wrong wrong

and who appointed you the power to create this general rule to which roe is the singular exception?

AlphaLiberal said...

The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law. And that is exactly what Palin said.

Really? Where? Not in the text you quoted. Nothing of the kind. Maybe you read her mind with your mind-reading superpowers.

I think the follow-up question should have been "Do you think outlawing slavery should also have been left up to the states?"

But Couric let her off easy.

Cedarford said...

downtownlad said...
She obviously doesn't know any other Supreme Court cases.

Was it really that hard to say "Kelo!".


Right now is a bad time to revisit "Kelo" for just about everyone.
All the parties to Kelo except one family were "house flippers". Many other speculators were able to dive in and extort a nice sum from the development company, courtesy of State of CT and Fed taxpayers without joining the "sacred home" libertarian lawsuit...
It was amusing to see the real estate speculators of "Kelo" wail and whine about their "beloved homes" down by the city sewage plant when they actually lived elsewhere..and only showed up prior to TV cameras appearing for a "Mrs Kelo, planting her beloved geraniums" photo op.
Then Mrs Kelo moved back to her Lyme house, or up to Plainville to her family house, or staying and fixing up her husbands or daughters house she had part ownership of in Montville.

Kelo was an amusing spectacle. Few Americans knew the real story about the plaintiffs.

AlphaLiberal said...

It was funny how Palin says she would give personal advice to any pregnant victim of incest to carry the child to term.

She doesn't seem to understand that the VP is not a pregnancy counselor.

And she says she doesn't want anyone jailed for violating the anti-abortion laws she supports. Again, this is alarming cluelessness. That's what the law does.

Great pick, McCain.

AlphaLiberal said...

Knowing how sycophantic Ann Althouse is to Glenn Reynolds, I wanted to pass along this hilarious post riffing on Glenn Reynolds calling Palin “progressive” for having a friend who is gay.

Using this standard, you might say that Sarah is “progressive” because she’s opposed to shooting gays from airplanes. (Not that we know that's her position).

Good picture of Reynolds at the link, too.

Last night I talked to several women incensed that Palin is considered representative of female ability while being a "complete bimbo."

Althouse, meanwhile, flacks for Palin claiming her stammering evasions and inability to field a simple question are evidence of great intellectual fortitude.

Keep polishing!

Brent said...

keep trying AL.

I'll take bimbo Palin over bimbo/ho Barack any day.

Synova said...

And you see, that's not what I think of when I think of Peirce, Simon.

When I think of it, I think of all the ways that other people feel they have the right to control the education and religious upbringing of our children... often with the excuse of democratic process and majority rule. The arguments that the justices made and how they are used in other cases aren't important to me.

I care that someone stopped Pierce (or whoever actually did it) from mandating compulsory public education for children who's parents had unpopular or minority religious beliefs.

Synova said...

AL, there has always been great hostility from women toward other women who aren't carrying a feminist banner.

This is not news, or new, or important, even.

Zachary Paul Sire said...

We should definitely be grilling Nancy Pelosi on this stuff.

Wow, so now Nancy Pelosi is being dragged into this. The excuses and distractions just get more bizarre every day.

Fred4Pres said...

Palin v. Biden:

I found it odd that Palin could not name another Supreme Court decision with which she disagreed. After all, we know that she is aware of at least one Supreme Court decision other than Roe v. Wade with which she disagrees. Just over a month ago she criticized the Supreme Court's decision in the Exxon Valdez case, slashing the punitive damages awarded by the trial court. So did she simply freeze up and forget? Was she afraid of a 'gotcha' comeback if she named a specific case? Or is she that much of a knucklehead that she can't even remember what she thought of the Court several weeks ago? My read of the video is that the first is most likely, but I'm sure others will disagree.

Biden, the constitutional law scholar and former Chair of the Senate Judiciary Committee, spoke more smoothly and authoritatively on the issue. Yet while his defense of Roe may have sounded thoughtful at a superficial level, it was actually quite incoherent. Instead of saying that he thinks the abortion right is a fundamental liberty that deserves constitutional protection — which he only hinted at later, and would be a more straightforward way to defend Roe and an abortion right under the Constitution — Biden explained that the Court's decision is "as close to a consensus that can exist in a society as heterogeneous as ours." Setting aside his focus on Roe, and his description of Roe's initial holding as if it were still the law of the land and had not been supplanted by Casey's "undue burden" test, his rationale is problematic on several levels, particularly for someone who holds himself out as an expert on constitutional law...

UPDATE: Brian Kalt has more thoughts on the interviews here. His conclusion:

I would have been much happier if Palin had given better answers to Couric. But her lack of knowledge of constitutional law would assumedly lead her to rely on others for advice on such matters. She doesn't know, but surely she realizes it. Biden, by contrast, has the smooth confidence of someone who has been immersed in these issues for decades. But he's wrong. To me, that's actually scarier.

Volokh Conspiracy on Palin and Biden

Simon said...

Synova, with all due respect, I think you're looking at it in very much the wrong way. That a case comes out in a way that you like (or that I might like - I have no bone to pick with homeschooling) is no reason at all to like it. If it comes out the right way but via the wrong road is little better. Perhaps the law was a bad law, and perhaps there was an establishment clause issue in the Society of Sisters case (there were at least two consolidated cases, IIRC), but there's nothing in the Constitution of the United States that operates as a general prohibition on the states mandating school attendance. Lex malla lex nulla has never been our Constitution - only lex ultra vires lex nulla. Cases like Meyer and Pierce represent a usurpatory but popular doctrine that (I would argue) reads the due process clause in a broad, atextual and unworkably malleable way, protecting any action that can be characterized as involving "liberty" from government action if five members of the Supreme Court agree that government interference therewith is bad. There is no warrant in the Constitution for this.

As I said above, Constitutionally-protected rights are not coextensive with natural rights. There are many things that government ought not do but that the Constitution permits it to do subject to the control of the ballot box. Scalia said it well in Troxel v. Granville:

"[The] right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all Men … are endowed by their Creator.' And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution’s enumeration of rights 'shall not be construed to deny or disparage.' The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right."

Simon said...

Zachary Paul Sire said...
"Wow, so now Nancy Pelosi is being dragged into this."

You dragged her into it, not me. Your argument is that we need to know the legal views of people directly in line to the Presidency. In this day and age, a catastrophe that kills the President is likely to kill the Vice President, too, and Pelosi is next in line whoever wins the next election (although I'm one of those who've argued that the Speaker shouldn't be).

Simon said...

Addenda to my reply to Synova - I said above that what the result is, and how well one likes it as a policy matter, is not a measure of whether the case came out right. As an example: I would still be bitterly hostile to Roe even if I was pro choice. That I would prefer a different legal regime vis-a-vis abortion than that permitted by Roe is beside the point; indeed, even if there was a constitutional amendment passed that said "there is a right to abortion" I would still want Roe overruled, because it's not just the result that's bad, it's the method of reasoning that's so cancerous.

Synova said...

Simon,

If you asked me a *general* question about the courts I would probably say just about what you said here. If you asked me if a bad ruling with the right result was a good thing, I'd most certainly say no.

Which was sort of my point for bringing this up.

I've not studied law and can only name a very small number of cases, and that's one of them I can name. Does being able to do that mean anything? Not really. If I were asked I'd say, "This was a good ruling" because it came to the right conclusion.

Because the bare bones of what the situation was and which direction the case was decided are all I know.

But if you asked me... is coming to the right conclusion more important than ruling on the case correctly with legitimate arguments and what-all or asked if the right conclusion is worth a bad precedent... I'd say h*ll no.

Which, I hope, we can relate back to the questions Couric was asking Palin.

People have an understanding, or perhaps I should say Understanding, that they use to compare and judge specifics against. Because few of us are experts in anything much. And we all have to be able to sort what the experts tell us and make decisions based on two things... our Understanding against what the expert has said.

Synova said...

That's what someone should ask Palin.

Would she welcome a ruling she agreed with if it was ruled badly, and why or why not?

Ask her about how people view the courts and what sort of things inspire or destroy confidence in the judicial system.

It wouldn't be hard to find out if her priorities are with rulings that are constitutionally sound, or ones that agree with her views.

Zachary Paul Sire said...

Your argument is that we need to know the legal views of people directly in line to the Presidency.

Like I said, the distractions and excuses are increasingly bizarre. This is about the person running to be the vice president, possibly the president. The more people distract and change the subject or shift the focus, the more disingenuous they look.

In this day and age, a catastrophe that kills the President is likely to kill the Vice President, too.

Oh Simon...

AlphaLiberal said...

So, are conservatives going to watch the debate tonight with wine .... or with whine?

Prediction: Althouse will join the chorus of whiners.

Mixalhs said...

Simon:

Sorry if I was unclear. If you watch the interview, you see that she is talking about the right to privacy generally. She seems to think that a right to privacy could exist, but that it could still be none of the federal government's business, i.e., up to states. In sum, she says "sure there's a right to privacy, but those issues are best left to the state"....if she meant to say "but I don't think THIS is one of them and THIS issue should be left to the states" then you'd be right. But you don't get that from her interview.

Peter V. Bella said...

AlphaLiberal said...
So, are conservatives going to watch the debate tonight with wine .... or with whine?

Are you effing serious? With baseball playoffs on TV? We are patriotic Americans and have priorities; taxation is no patriotic, debates are not patriotic, baseball is patriotic.

Peter V. Bella said...
This comment has been removed by the author.
Peter V. Bella said...

Hey Trumpit,
I see the meds are not working and you still have squirrels juggling knives in your brain.

Peter V. Bella said...

Palin, at one point should have laughed, patted Katie Couric on the back, and said "I'll tell you what Katie, when you ask me an intelligent question I will give you an intelligent answer. Now, let's talk about the issues that are important to the AMerican people..."

AlphaLiberal said...

Sara Palin is worth $1.2 million.

Describes herself as "Joe Sixpack."

Kinda dishonest, no?

SoccerBaller said...

Lisa over at College Jolt posted the top 5 most ridiculous Palin videos; I think you all might find this entertaining: http://collegejolt.com/buzz/top-five-sarah-palin-videos-thatll-have-you-snort-milk/