Over the last couple months I’ve been beating the drum over the critical importance of putting Roe v. Wade at the center of the midterm election and doing so with a unified pledge to pass a Roe law in January 2023 if Democrats hold the House and add two Senate seats. There’s been some but still not nearly enough progress on getting Democrats to make this pledge or at least to say they’d support such a bill if it comes to a vote. So I wanted to check in to see if polls suggest any of this is having an impact.

I wanted to refer back to the email from TPM Reader SR which I published last night. SR referred to yesterday’s email from TPM Reader TL about government lawyers and the challenge they face taking stock of the fundamental changes in today’s judiciary. SR interpreted this as a matter of toughness or willingness to take extreme steps to advance policy outcomes. As he put it, these roadblocks stymie Democrats but they didn’t create an obstacle for Republicans or Trumpers because they just ignored the legal advice. “The difference is integrity. Dems have it. Reps don’t. You knew that already.”

This is not at all what we’re talking about. Certainly not what I’m talking about and I’m quite confident not what TL was talking about either. Toughness or willingness to break things is another metric that can be very important. But that’s not what we’re talking about here.

I disagree with TPM Reader SR on this. But I post it here to add to and advance our broader discussion of the issue.

Those same gutless government lawyers mentioned in the edblog email today also put an end to a LOT of stupid shit long before the public gets a whiff of it. “Big shouldered” tough-guy dummies in the last admin were stopped dead in their tracks more often than not. They were literally too stupid for their own good. Which, was good for the rest of us.

The same starting point of what is the statutory/const authority for doing this action is an equal opportunity roadblock. The difference is that the republicans say thanks and do it anyway by finding some political lawyer hack to overrule. The dems piss and moan about the laudable goals(often true) and ask to rethink it 5 times and then gnash and wail forever. But don’t do it.

I want you to read this TPM Reader email. If you care about Roe, Dobbs or what seems like a White House response that’s just not up to the challenge of the moment, you should really read this. It’s not exculpatory. But it explains the nature of the breakdown, the outdated model they appear to be stuck in. I won’t be identifying the TPM Reader, even by initials. Suffice it to say TPM Reader TL, as I’ll call them, has longtime professional experience that allows them to give this perspective and render these judgments.

Yesterday afternoon, you retweeted the Politico story on the White House lawyers’ conservative approach to post-Dobbs fixes saying “If this is true it shows a total misunderstanding of the current political moment.”

That is exactly the problem.

For decades, lawyers for the Executive Branch, in both DoJ and the White House, have urged their “clients”—agencies and the President—not to be overly aggressive in exercising their authority for fear that agency action would be invalidated in court. 

I wanted to follow up on Nicole Lafond’s post from yesterday afternoon. Subject to signature verification, a broad right to abortion and reproductive rights in the form of a state constitutional amendment will now appear on the ballot in Michigan in the November election. It seems very likely the referendum will win and essentially end the abortion issue in the state of Michigan going forward, excluding the possibility of a national abortion ban or Court ruling that might conceivably override the state constitution. One recent poll shows that 58% of Michigan residents oppose the Dobbs decision and 52% strongly oppose it. Only 34% support it.

Late last week as we were discussing Roe, the corruption of the Court and various avenues to constrain that corruption, I got a series of emails from TPM Reader lawyers experiencing what amounts to a crisis of faith in the assumptions of their profession. They were remarkably similar. It was clear the debate had struck a very particular nerve.

So, for instance, TPM Reader SB wrote saying he entirely agrees with the need to codify Roe and if necessary take further steps to constrain the Court if they then strike down such a codification. But then he added this.

So yesterday morning we got into contact with three Senate offices trying to see where everyone was on Roe and Reform. We contacted the offices of Sens. Feinstein, Casey and King. (We also reached out to Sens. Tester and Coons. But in those cases it wasn’t clear we got through the forest of out of office emails and voice mail messages. Congress is currently on recess.) Yesterday afternoon Sen. Feinstein’s office released a statement affirming that she’s ready to suspend the filibuster rules for the Roe bill. Around the same time, Sen. Casey’s office confirmed to Kate Riga that Casey also supported suspending the filibuster rules for a Roe bill. And that leaves us with … hmm? Who’s left? Oh right! Sen. Angus King of Maine, an independent who caucuses with the Democrats. So far no response or clarification on this issue. Crickets.

(We also had a conversation with Sen. Kaine, which we’ll get to in a later post.)

This covers some ground we’ve discussed already. But I wanted to come at it from a slightly different angle. The following is a note from a law professor TPM Reader whose initials I’m omitting because it’s a small world. I’ll call them LP …

Codifying Roe is not so easy. Congress has only the legislative power explicitly provided in the constitution. In the ACA case, the Court (per CJ Roberts) decided that “health care and insurance” was outside the domain of the commerce clause. And perhaps that’s a good thing, because it’s something of a safeguard against a national anti-abortion law. So what about the enabling clauses of the 14th Amendment (sec 5) and the 13th Amendment (sec. 2). The Court has cut back Congress’ power to use sec 5 to “expand” rights. So you’ve made a point of pushing Biden on “give me 2 more Senators and we’ll run over the filibuster to codify Roe,” I think TPM should do some reporting on what “codifying” would mean and whether it’s practicable with this Court, without something like the ERA. And so maybe you ought to be pushing Biden on “give me 2 more Senators and we’ll enlarge the Court.”

That was quick. Yesterday, Sen. Feinstein’s staff refused to commit to changing the filibuster rules to pass a Roe law in response to questions from The San Francisco Chronicle. TPM’s Kate Riga followed up with her office earlier today and Feinstein has now changed her position. This afternoon she released a statement committing to suspending the filibuster rules to pass a Roe law.

It looks like there may be only one senator standing between voters and passing a Roe law in January 2023. And it’s of all people the senator from California: Dianne Feinstein! We mentioned this yesterday after a staffer in Feinstein’s office told TPM Reader RM that the senator could only commit “to discuss filibuster reform” to allow an up or down vote on the Roe bill in January 2023. Now Joe Garofoli of The San Francisco Chronicle got a more definitive not-at-all-definitive statement from Feinstein’s spokesperson Adam Russell.