Commentary Politics

Trial Balloons and Hot Air: Don’t Let Biden and Schumer Fool You on ‘Mainstream’ SCOTUS Nominees

Jodi Jacobson

Both Schumer and Biden seem to agree that what we need to replace deceased Supreme Court Justice Antonin Scalia is a "mainstream" nominee for the Court. I call foul.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

Over the last two days, both Sen. Chuck Schumer (D-NY) and Vice President Joe Biden have weighed in on the kind of nominee they think President Obama should recommend to replace deceased Supreme Court Justice Antonin Scalia.

And as things go, it is no accident that these two men, leaders in the Democratic Party with direct access to the president, said basically the same thing within a couple of days of each other. They are either floating trial balloons—testing public reaction—for the White House or trying to influence the president’s decision. Either way, they are using their positions and their access to the media as a way of sending a message.

And either way, I call foul.

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Both Schumer and Biden seem to agree that what we need now is a “mainstream” nominee for the Court.

In an interview on ABC News’ This Week with George Stephanopoulos last Sunday, Schumer, who sits on the Senate Judiciary Committee, said he expects President Obama to nominate a “mainstream” justice, citing the potential to win support of “mainstream Republicans.”

“I think the president, past is prologue, will nominate someone who is mainstream,” Schumer stated. As the New York Times reported:

“When you go right off the bat and say, I don’t care who he nominates, I am going to oppose him — that’s not going to fly,” he said, criticizing the majority leader Mitch McConnell for pledging to block any nominee. “A lot of the mainstream Republicans are going to say, I may not follow this.”

According to the Washington Post, Biden echoed Schumer’s statement in an interview aboard Air Force Two:

“This is a potential gigantic game changer” for the philosophical makeup of the court, Biden said in an interview with The Washington Post and Politico. “And my advice is, the only way we get someone on the court, now or even later, is to do what we’ve done in the past…we have to pick somebody, as the president will, who is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda.

These comments are so full of potentially meaningless and yet potentially profound code and buzzwords, I don’t know where to start.

First of all, what exactly these days is a “mainstream Republican” and where do they live? Is Biden referring to the senators who joined a party-line vote to overturn the Affordable Care Act? Is he talking about the “moderate” GOP party-line vote to impose a 20-week abortion ban? Which of the Republicans that voted against Obama’s nominees to the Consumer Financial Protection Bureau are the moderate ones? Which of the ones that have held up judicial nominees for over two years are “mainstream”? How is opposing all attempts by the White House and Democrats to pass paid family leave a “mainstream” position, especially in light of the fact that this policy is supported by a wide majority of Americans? Are the mainstream the ones that continue to block the Paycheck Fairness Act?

Second, does Vice President Biden mean to suggest that a justice who perhaps believes that women have rights to their own bodies cannot be “intellectually competent … a person of high moral character … a person who is demonstrated to have an open mind … a person who doesn’t come with a specific agenda”? Is promoting public health an agenda? Are basic human rights a specific political agenda?

Is Biden suggesting, no matter how subtly and in meaningless Beltway-speak, that a jurist who pays heed to overwhelming medical and public health evidence on the role that both contraception and abortion play in improving public health, women’s health, and infant and child health is not “mainstream” and otherwise has an agenda?

Does a jurist with roots in a specific community and with an understanding of the law’s differential impact on people of different races, classes, and privileges come with an agenda?

Given that the white population will soon be the minority, who is “mainstream,” the white guy or the person of color?

Let’s face facts: What is considered “mainstream” for both of these men is not necessarily based on the needs and priorities of the average American. Schumer is only “mainstream” in that he is a white male senator in a legislative body that is dominated by white male senators (the Senate is 80 percent male and 94 percent white) and in that he takes huge amounts of funding from Wall Street. “Mainstream” for Schumer might well be translated to mean someone who won’t seek to curb the influence of big money in politics.

Likewise, Joe Biden is only “mainstream” on many issues insofar as they can be comfortably navigated within the Old Boys Clubs of which he is a longstanding member, one of which is the Senate and the other of which is the group of Catholic Democrats that remain beholden at some level to the most-conservative U.S. Conference of Catholic Bishops. It was Biden, who as a Catholic is highly ambivalent about reproductive health care, played leading roles in the Obama administration’s decisions on the Stupak Amendment in the ACA, and in the “contraceptive accommodations” made to religious groups, among many other things.

The carve-outs never satisfied the rabidly right-wing bishops and led to continuing lawsuits and ever greater demands of exemptions. This is not a “mainstream” position, especially if you consider that 98 percent of Catholic women (and 99 percent of all women) who have ever had sex have used modern forms of birth control. The only mainstream position on birth control and abortion is the one that recognizes both the public health and social science evidence, the rights of women as people, and the fact that an overwhelming majority of women use birth control and one third of women in the United States have abortions. There is nothing mainstream about white, religious men ignoring that fact or pretending that they know better.

The only reason they suggest that someone who does not have any record of supporting evidence or rights might (and it’s a highly questionable assumption) get approved by the GOP-led Senate is because the Republicans themselves are not mainstream by any stretch of the imagination, and are only interested in someone with an agenda to protect their interests.

In my definition, someone who, as Biden suggests, “is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda,” is a person who recognizes that human rights, evidence, and justice should be of central concern to the Supreme Court. When I hear Biden use these words, I hear echoes of his 2007 statement that Barack Obama was the first “mainstream African-American who is articulate and bright and clean and a nice-looking guy.” It sounds to me that “mainstream” is someone comfortable to the white men in power.

The word “mainstream” is now meaningless. The media won’t challenge it because most of the reporters are stuck in a white male corporate bubble and spend their time at parties at the vice president’s residence. You can’t depend on them to challenge the very notion of what it means.

When you hear a white male senator or a white male vice president—both of whom have vested interests in agendas that do not represent either the interests of the greater number of people in this country, and/or also ignore solid scientific evidence—use terms like “mainstream,” know one thing: They are not swimming in the same stream as the rest of us.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquiries from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

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