Republicans' Self-Inflicted Political Nightmare

For decades Republican candidates and office holders rallied against abortion and said they supported the overturning of Roe v. Wade.  I suspect most did so not because they held any deep religious belief against abortion but rather because they sought the votes of evangelicals and Christofascists - some of the most consistent voters in Republican primaries over the last few decades - and/or sought to avoid primary challenges.   Most never believed that Roe would actually be overturned, so these rants and positions seemingly offered a safe means to pander to this voting block while never facing any consequences if Roe were in fact overturned.  When Donald Trump sought the GOP nomination, he made similar promises to a coven of "Christian" extremists and induced them to sell their souls and throw aside any moral standing by promising to appoint justices who would overturn Roe (see today's earlier post).  Trump kept his promise to the Christofascists by his Supreme Court appointments and to the shock of many Republicans (and the public at large) Roe was overturned.  Meanwhile, at the state level, Republicans were packing courts with right wing extremists thereby setting the stage for the state supreme court rulings in Florida and Arizona that have banned virtually almost all abortions.  Christofascists are perhaps thrilled by the effort to go backward in time, but the majority of voters are not - many worry what other rights and protections may soon be eliminated by packed, reactionary courts as hinted by justices Clarence Thomas and Samuel Alito - and Republicans find themselves in a political nightmare of their own creation.  A column in the Washington Post looks at this unplanned consequence:

The problem bedeviling Republicans on abortion right now isn’t leaving the contentious issue to the states. It’s leaving abortion rights in the hands of state supreme courts, which Republicans have carefully remolded in a more conservative direction — one that is now inflicting untold political damage on the party.

The country’s been reminded over the past few years about the critical role that state courts play in overseeing fractious issues, from drawing voting districts to refereeing abortion rights. That’s made state high courts, especially in states where justices are elected, new political battlegrounds, with multimillion-dollar campaigns. In Wisconsin, the battle for control over the state Supreme Court last year cost an eye-popping $51 million and shifted control to liberals for the first time in 15 years.

I have sharply criticized judicial elections, but at least that method gives voters some say in what rights they are granted. What’s happened in recent days in Florida and Arizona is the predictable and intended result of a different and more insidious form of politicization of the judiciary: court-packing by Republican governors.

The effectiveness of that tactic was on vivid display this week in Arizona. For more than a half-century, the state had five Supreme Court justices. Then came Republican Gov. Doug Ducey. In 2016, the Republican-controlled state legislature — over the objections of the sitting justices — expanded the court to seven. As a result, Ducey was able to name five of the seven justices sitting today; the other two were named by his Republican predecessor, Jan Brewer.

Ducey rejected suggestions that he was engaging in court-packing, noting that an independent merit selection panel screens candidates and sends recommendations to him. But as a prescient 2020 Politico Magazine story recounted, Ducey made it a goal to shift the Supreme Court to the right. When the judicial nominating commission rejected the application of Bill Montgomery, a prosecutor allied with former Maricopa County Sheriff Joe Arpaio, Ducey replaced the three commissioners who had voted against Montgomery — and proceeded to name Montgomery to the high court.

That effort paid off — or backfired — this week. The court reinstated Arizona’s 1864 abortion law, which prohibits the procedure except to save the life of the mother.

[F]our Ducey appointees were still left — and they voted as a bloc to revive the Civil War-era abortion law. The majority professed to be following a course of judicial restraint. . . . we merely follow our limited constitutional role and duty to interpret the law as written.”

Of course, the “citizens” whose judgment the court respected didn’t include women — they couldn’t vote in 1864. Arizona wouldn’t become a state for another 47 years.

The Arizona court didn’t have to come out this way, even after the U.S. Supreme Court eliminated the right to abortion in Dobbs v. Jackson Women’s Health Organization. In 2022, as the Supreme Court was considering Dobbs, Arizona passed a new law — it didn’t take effect until after Dobbs was decided — that prohibited abortion, “except in a medical emergency,” after 15 weeks. . . . No “trigger” mechanism, like those adopted in other states, provided that the 1864 law would spring back to life if Roe were overruled.

This isn’t judicial restraint — it’s judicial activism. And now Arizona Republicans are reaping what Ducey and his allies sowed.

The same is happening in Florida, although the goings-on there have received less attention. Like Arizona, all seven justices on the Florida Supreme Court were named by Republican governors, five by Gov. Ron DeSantis. . . .his picks have shifted the court sharply to the right. “A newly constituted, conservative court,” with appointments “I hoped would judge in the mold of U.S. Supreme Court Justice Clarence Thomas,” DeSantis wrote in his book.

Hence, the latest pair of abortion rulings this month from the Florida Supreme Court. In one case, the court rejected a challenge to the state’s 15-week abortion law — a decision that effectively allows a new, even stricter six-week ban to go into effect. In the second case, the court permitted a proposed constitutional amendment to protect abortion rights to appear on the November ballot.

This may sound like a split-the-difference approach. Don’t be fooled. In the ballot measure case, three dissenting justices, all appointed by DeSantis, raised the question, not posed by the advocates themselves, of whether and how the Florida constitution protects the rights of fetuses — a claim of “fetal personhood” that came up in the Alabama in vitro fertilization case and that is the next frontier in the legal abortion wars.

“The exercise of a ‘right’ to an abortion literally results in a devastating infringement on the right of another person: the right to live,” wrote Justice Renatha Francis. “And our Florida Constitution recognizes that ‘life’ is a ‘basic right’ for ‘all natural persons.’

[A] fourth DeSantis appointee who ruled to allow the ballot measure to go forward, Chief Justice Carlos G. Muñiz, raised the question of fetal rights at oral argument, and an ominous footnote in the majority opinion noted that the “constitutional status of a preborn child … presents complex and unsettled questions.”

In other words, don’t count on us upholding your ballot measure even if it does get the required 60 percent vote. So much for letting the people decide.