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This week President Joe Biden and Donald Trump both secured their respective parties' 2024 presidential nominations. Most Americans, if the pollsters can be believed (and they do all seem to be telling the same story), are not exactly thrilled with this rematch and would have preferred different choices. But we are where we are, so that's not going to happen for another four years.
There is an effort underway to reform the federal judiciary in one particular aspect -- but it will not completely end the practice which spurred the reform, and already Republicans in Congress are pushing back by declaring that new laws must be passed instead of just a new rule from the judiciary. This isn't too surprising, since conservatives have had much better luck using the tactic to achieve the outcomes they desire in federal courts.
The practice is known as: "forum-shopping," or even more colloquially: "judge-shopping." If an organization wants to attack a law or policy in an attempt to get it declared unconstitutional and overturned, they seek out a plaintiff who happens to live in a judicial division that all but guarantees they'll get a very friendly federal judge to hear their case. This can lead to injunctions being handed down that affect not only the people in that district, but in the entire state or even the entire country. Rather than taking their chances with some random judge, one is pre-selected before filing the suit -- a judge who can be counted on to rule for their side.
I sit writing this while proudly wearing my "I Voted!" sticker, after doing my civic duty by participating in my state's primary election. Today is the traditional day marking the end of the "early-voting" phase, when the primary season is flung wide open to any state willing to move to the front of the line. California did so a while back, joining over a dozen other "Super Tuesday" states. But while I am more immersed in the political world than most, I find it hard to get even a little excited today. After all, everybody knows what's going to happen and both horseraces were really over before they even began.
During her campaign for president, Nikki Haley has been trying to have it both ways on the issue of abortion by tailoring the way she speaks about it to try to be everything to everybody. She speaks of bringing everyone together to achieve some sort of "consensus" -- which seems downright impossible given the positions staked out by both sides of the debate. And, true to form, ever since the Alabama supreme court tossed in vitro fertilization into the political arena, Haley has likewise been trying to have it both ways on the legal questions that have arisen. Except that on this issue, Haley has a more personal stake, having had her own children using I.V.F. So when she was interviewed on Meet The Press this weekend, host Kristen Welker tried to pin Haley down on her position. What she got from Haley was complete incoherence. Haley contradicted herself repeatedly, coming down on every possible side of the issue at once. To say she was talking out of both sides of her mouth is actually an understatement.
The legal issue Alabama raised is the question of "personhood" -- is an embryo consisting of four cells a human being with full constitutional rights or not? The court said it was. Which means that destroying an embryo is nothing short of manslaughter or murder, according to the laws on the books. Which is why while watching the interview I was rather astounded that Welker didn't ask Haley a very obvious question that would have highlighted the central issue in a way that nothing else could. But I'm getting ahead of myself.
From the transcript of the show, here is how the conversation started:
[HOST KRISTEN WELKER:] Welcome back. This week, a single Republican lawmaker blocked legislation that would have created federal protections for I.V.F. access nationwide. Mississippi Senator Cindy Hyde-Smith, who blocked the bill, said it was, quote, "vast overreach." I asked Ambassador Nikki Haley whether she supports federal protections for I.V.F.
[FORMER AMBASSADOR NIKKI HALEY:] What I support is that we make sure that every parent has the right to have those fertility processes. I had my two children through fertility [treatments]. I want every parent who wants that blessing to be able to have that. And government shouldn't do anything to stop it.
[WELKER:] So, should there be federal protections for people for I.V.F.?
[HALEY:] I think there should be protections for the embryos, so that parents feel like they're protected and respected. But I think the conversation of what happens with those embryos has to be between the parents and the physician, period. We don't need to go and create a bunch of laws for something when we don't have a problem. There is not a problem, in terms of what is happening, so we shouldn't have government create one. This is -- this is not a hard thing. When parents decide they want to have a baby and they can't, the blessing that Michael and I had, to be able to go through the fertility processes to have our babies was a personal one that we wanted to have just with our doctor. We don't want to have that conversation with government.
The verbal gymnastics are breathtaking, even in a single one of Haley's answers. She starts from the position "every parent has a right" to use I.V.F. and the "government shouldn't do anything to stop that." But the government (the court) in Alabama did do something to stop it, which is the whole issue. So should there be federal protections for I.V.F. services and the women who want to use them? Haley does not say.
Instead, she starts doing verbal backflips. There "should be protection for the embryos," which is, incidentally, exactly what the Alabama court ruled. So Haley seems to agree with their decision. But then "the conversation of what happens with those embryos has to be between the parents and the physician, period." Which means the government shouldn't be involved in the decision at all, which seems to argue for federal protections for I.V.F. rights, which would preclude state courts and legislatures from intruding on the conversations between parents and physicians.
Haley's next sentence is vague. She doesn't think there is any problem, so governments shouldn't pass a bunch of laws that create a problem. But that's just what Alabama and all the other states with "personhood begins at conception" laws have already done. Haley blithely states that "there is not a problem," when there definitely is -- just ask any of the women in Alabama who had their treatments interrupted by the court's ruling. Haley doubles down on this for the rest of the answer, stating that I.V.F. decisions were personal ones that her and her husband "wanted to have just with our doctor" and that they didn't want "to have that conversation with the government." But the women of Alabama already had to face this problem, a fact Haley refuses to admit. They had to face this problem because there aren't federal laws protecting I.V.F. rights.
To her credit, Welker then asked a very obvious and pertinent question:
[WELKER:] You're saying that the decision should be between parents and the physician, no one else. Why doesn't that same standard apply to an abortion, for example?
[HALEY:] Well, what I have said is: This should be in the hands of the people for the people to decide. They should decide whether their states are going to be pro-life or pro-choice. They should decide whether their states are going to be I.V.F. or not I.V.F. I personally think we want as many fertility options for people as they can. That's my opinion.
So now Haley is in favor of states' rights -- she's find with "the people" in each individual state deciding what reproductive laws they want to have. But this completely contradicts where she started from: "I want every parent who wants that blessing to be able to have that. And government shouldn't do anything to stop it." She's moved from there to saying that each state should decide whether they intrude on decisions made between parents and doctors, which is pretty much the exact opposite.
Haley then doubled down and tried to retreat to her "can't we all just get along" rhetoric:
[WELKER:] It --
[HALEY:] But other states may decide something different. Alabama was going in one direction. I don't think that's a direction you want to go, the same way I don't think that the conversations that people have been having on abortion are good conversations. They divide people, instead of bringing people together. And I think these need to be handled with respect and humanizing these situations, instead of demonizing them.
This is hokum. It is feel-good-ism masquerading as a serious political stance. Because on the question of abortion (and, now, I.V.F.), people are already divided. It's not "having the conversation" that divides people, it is the issue itself. Alabama went in one direction -- one that is completely at odds with Haley's belief that all parents should be able to decide these things for themselves. But Haley's response is to shrug her shoulders and essentially say: "Oh well, that's what your state decided, guess you have to deal with it." That is not consensus, that is political cowardice.
This is where I wish Welker had asked one more very obvious and pertinent question, at some point in the following exchange:
[WELKER:] You have said embryos are babies. It sounds like you don't want the government involved when it comes to I.V.F., but you do when it comes to abortion.
[HALEY:] My personal opinions is that embryos are babies. Somebody else's may be different. I treated -- the way Michael and I looked at it was we always looked at it that way. But everybody looks at this differently, and you are looking at a situation where, one, you're not talking about masses of embryos, but, two, you've got to talk with your doctor about what's viable and what's not. It's a very technical process that you can't just blanket a law around.
[WELKER:] Well, and that's why -- I just want to get the bottom line here, because, as you rightfully say, I.V.F. is a process in which embryos are sometimes destroyed or donated. Do you support I.V.F. as it is practiced in the United States?
[HALEY:] Yes, of course.
The question I really would have liked to hear Haley answer was: "During your own I.V.F. treatments, were any of your embryos destroyed in any way? Or is every single embryo you created in the process still frozen and in storage somewhere? If so, what are you going to do with them? Keep them frozen forever? Should every parent have to pay for eternal storage for their unused frozen embryos? Or should parents be legally able to opt to discard them?"
This would have really put Haley on the spot. Because odds are ("I.V.F. as it is practiced in the United States") the Haleys didn't save every single embryo created, and that some were in fact destroyed. How would Haley have handled being asked that?
She could have gotten indignant and refused to answer: "That's a private matter between me, my husband, and our doctors." But if Alabama had its way, this wouldn't be a purely private matter. It would be, under state law, a matter for cops and prosecutors and courts to investigate -- to see whether manslaughter or murder charges should be brought.
Haley could have lied and said no embryos were discarded, but this obviously would have the possibility of coming back to bite her later, if she told such a lie and it were exposed.
Or she could have retreated into vagueness again: "It's a very technical process that you can't just blanket a law around." Which is precisely the point -- that both I.V.F. and abortion are personal reproductive choices that are unique medical circumstances to each individual -- and that the government should not be involved because blanket laws always lead to unforeseen outcomes.
Haley then closed with her standard abortion mishmash, which is presented as a practical argument about the Senate and what is politically possible, mixed with a bunch of Kumbaya idealism about what everyone wants.
[WELKER:] And should there be federal protections for that?
[HALEY:] Yes, to make sure that I.V.F. is there, to make sure that parents have it, all of that. But keep in mind, too, even when you're talking about the issue of abortion -- and I don't think the fellows have talked about it well at all -- we have to go back to, "What is it that we want?" We all want to say, "How do we save as many babies as possible and support as many moms as possible?" That's why I've said, with a federal law, rather than going and demonizing this issue, let's find consensus and say, "Why can't we come together on banning late-term abortions? Why can't we come together on encouraging adoptions? Why can't we come together on saying doctors and nurses who don't believe in abortion shouldn't have to perform them? Why can't we come together and say contraception should be accessible? And why can't we come together and say no state can tell a woman who's had an abortion she's going to jail or getting the death penalty?" Why don't we just start there?
[WELKER:] Is consensus realistic, though? This is an issue that's been debated for over 50 years. Is that realistic, consensus?
[HALEY:] Consensus is available when you tell the American people the truth. The American people have been told to have options that aren't realistic. You can't get consensus unless you have a majority of the House, 60 Senate votes, and a signature of a president. That's not going to happen without consensus.
So Haley ends with another contradiction. She says she does want federal protection for I.V.F., which completely contradicts her earlier lackadaisical attitude towards individual states doing whatever they felt like doing, no matter the consequences for women.
Throughout it all, Haley turns in an Olympic-level verbal gymnastics performance. She thinks that what she and her husband did should be available to all women, she thinks government shouldn't even be in the discussion, she's fine with embryos being destroyed, but she also thinks that states should be able to decide for themselves and tough luck to the women who live there, but also that there should be federal protections that would preclude states from deciding for themselves, but it'd be really hard to get consensus at the federal level so why don't we just leave everything the way it is and not make "blanket laws" because "there is not a problem, in terms of what is happening, so we shouldn't have government create one."
In a word: incoherence. Haley wants to have it all ways, at the same time. She's hoping that everyone that feels a particular way about these things will only hear the parts of her interview where she seems to agree with them and ignore the parts where she agrees to the exact opposite. Haley's incoherence is quite transparent about wanting to be all things to all people.
It would indeed have been instructive to try to nail Haley down on the question of whether any of her own embryos had been destroyed during her I.V.F. treatments. It would have personalized the issue in a way that wouldn't be possible for any male politician, that's for sure. Haley keeps sticking to her insistence that she believes that "embryos are babies," which means that if some of hers were destroyed she is morally responsible for "killing her own babies."
Yes, that's a brutal way to put it. Yes, it's an incredibly intrusive question to even ask. Yes, it really should be a private thing between you and your doctor -- but it's not. Not anymore. Now it is a political matter being decided by moralizing judges and legislatures and governors. As such, any candidate who wants to be president of the whole country needs to have a position on it, and it certainly would be relevant to voters to hear from a person who has been through the I.V.F. process exactly what she thought of the legal ramifications of "fetal personhood" laws -- because that is precisely where the debate now stands. Kristen Welker missed a golden opportunity to highlight the issue in an absolutely unique way, which is a shame. Nikki Haley wants to have it all ways on these issues, and since she has her own unique perspective on things, she shouldn't be allowed to get away with such vague incoherence.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
This week, the Supreme Court didn't just stick a thumb on the scales of justice for Donald Trump, it tossed on a cinder block instead. By delaying any decision -- for months and months -- on Trump's ludicrous claim to total immunity from everything and anything he's ever done, the court will allow Trump to win even if he loses his appeal. Because Trump's main objective in the January 6th insurrection case against him is to delay, delay, delay. The Supreme Court is aiding and abetting this scheme in rather blatant fashion.
Democrats are beginning to widen their political message in a way that could prove to be a big winner for them not just in November but for years to come. So far, the fallout from the Supreme Court overturning Roe v. Wade has been overwhelmingly positive for Democrats, since the majority of Americans actually favor abortion rights for all women. And now Democrats have the clear opportunity to link a number of other things to the proven political winner abortion rights has turned out to be. In fact, they should adopt a new slogan: "It's not just about abortion."
Because this week had a federal holiday at the start of it, Congress is off on vacation for two entire weeks. Nice work if you can get it, eh?
It's not as if they don't have anything to do, either. When they return, the Senate will hold the first impeachment trial for a sitting cabinet member ever (although "trial" may be overstating it, since it may be over before it even begins, with a simple vote to dismiss the nonsensical articles of impeachment the House finally was able to pass), the House will be under pressure to pass some sort of military aid for Ukraine before their soldiers are reduced to fighting with pointy sticks, and Congress will be staring at yet another government-shutdown deadline at the end of the week. Those are just the big things on the congressional plate, mind you. But after all their hard work (at not getting anything done on time), they all needed two weeks of relaxation, obviously.
That headline comes from the end of an aphorism that goes back to the time of the ancient Greeks: "The wheels of justice turn slowly, but they grind exceedingly fine." Today, the wheels of justice just ground out a penalty of $355 million for Donald Trump, for committing serial fraud in his New York businesses -- which we certainly found to be an "exceedingly fine" result of the case (an "exceedingly fine fine," maybe?). The $355 million can now be added to the $88 million Trump is already on the hook for, after losing two other civil cases (the defamation cases brought by E. Jean Carroll). Plus, in today's ruling, two of Trump's children were fined $4 million each, as well as a $1 million fine for another member of the Trump Organization (making it a $364 million penalty, in all). This was the capstone to a week watching the slow grind of multiple court cases Trump is currently ensnared in, so we thought it was an appropriate place to start our column this week.
Donald Trump will finally be forced to sit in a courtroom to answer criminal charges against him in a trial before a jury of his peers. This trial will begin on March 25th, the judge overseeing the case ruled today. This was the originally-scheduled date for the courtroom drama to begin, which Trump's lawyers tried unsuccessfully to push back as far as they possibly could. The judge just flat-out rejected their pleas for delay, so jury selection will begin late next month.
This was a very bad week for Republicans in Congress, pretty much all around. The Speaker of the House proved incapable of counting votes and thus saw two big defeats on the floor, and over in the Senate the Republicans cut off their noses (elephant trunks?) to spite their faces in a spectacular turnaround from their own basic bargaining position. GOP incompetence was on display on both sides of the Capitol, to put it bluntly.