Monday, October 31, 2005

Dems dusting off original Bork playbook

As everyone pretty much admits openly, the big issue in a Supreme Court nomination is abortion: just listen to the interviews, and see how quickly it -- or "privacy" -- comes up.

Judge Alito's vote to uphold restrictions enacted by the Commonwealth of Pennsylvania, in the case that eventually found its way to the High Court, in Planned Parenthood v. Casey, will be "exhibit A" in the pro-aborts' complaints about him.

Less noticed is that he also voted to strike down a New Jersey law on partial-birth abortions (the argument in his defense is that he is a lower-court judge, bound by U.S. Supreme Court decisions); and he joined a decision that invalidated a stricter standard, enacted by Pennsylvania, deferring to the federal Secretary of Health and Human Services' interpretation of federal law in the matter. (The argument in his defense is that he was exercising judicial restraint in an area that belongs to the legislative arena, and in which federal authority legitimately trumps state action.)

Not being a lawyer, I won't attempt to parse these cases; but I'd say there could be reason for concern, on prolifers' part; on the other hand, it would be quite a stretch to expect a justice to ignore all other considerations in law and simply vote to block abortions. Call me a squish, but I don't want judges like that. They should act within the law.

But anyway, the pro-aborts won't say much about these other cases; it will be all-Casey.

But herewith a prediction: the main attack -- that is, the "cover story" -- won't be on abortion. It will come another way.

Why? Because unless I'm very mistaken, I expect Judge Alito will completely dodge any hint of how he'll vote on Roe--and since nothing has turned up, from his record, to reveal that, all the pro-aborts can point to is that he approved some rather modest restrictions, of the very sort that enjoy wide public support.

So the attack will come in a "Trojan Horse." If they can find a way to do it, they'll hit him with the Left's favorite attack: they'll slime him as "racially insensitive." (Recall they tried it on Roberts, but they couldn't make it stick.)

Also, expect the opposition to make something of Alito's vote to strike down the federal "Family Leave" Act. (Apparently, he did so on the basis that Congress trod on the authority and prerogatives of states, under the 11th Amendment.) In such circumstances, facts aren't what matter; what will matter is that the Left will scream that he's such a Neanderthal that he doesn't even think families should get unpaid leave from work in cases of illness or pregnancy!

And so it will go: mining his opinions for any basis to show how coolly, dispassionately, he watches widows and orphans marched to the workhouses, and minorities driven into ghettoes, etc.

In other words, stay tuned for the Left to run its original, classic "borking" play.


Todd said...

Fr Fox, I can't say this appointment, nor the upcoming fight over it, holds much interest for me. It seems conservatives hope for an activist court long enough to get abortion off the books, then to hope to return to a mild Eisenhower/Pleasantville kind of life.

Ultimately, abortion should be decided legislatively, and if that were to happen, we'd see some middle way: early abortions for a wide range of reasons permitted and later-term procedures with questionable methods outlawed.

Leaving this in the Supreme's hands sort of lets everybody off the hook in terms of getting their hands dirty. Anti-abortionists can spend their energy in the political realm without saving the number of lives they hope to. Legislators can be wishy-washy, taking a stand as it suits their election stake. The abortion industry rakes in the dough.

Quite honestly, I see no change in the cards for America. Does anybody else who's not a Pollyanna disagree?

Fr Martin Fox said...

If I were to guess -- and that's all it is -- I'd guess Mr. Alito would be a vote to gut, if not overturn, Roe and Casey and related rulings.

Assuming this is true of Roberts, then Alito would make four votes to overturn Roe; however, very often in history, precedents aren't overturned, strictly speaking, they are simply "reinterpreted" largely into irrelevance.

I think this would be a very good outcome. Roe was horrible, horrible law; and I say that more than because of its immediate result: abortion-on-demand; but also because it had so little to do with the Constitution.

Sweeping it aside, as a spurious constitutional matter, and returning it to legislatures, would, in time, be very healthy for our judicial system.

Now, as to your question: will this happen?

Nobody knows. But it may; and somebody has to be put on the Supreme Court...

Also, I think this matters in terms of what further nonsense may be prevented: in my opinion, the Supreme Court, in its last decision on the Texas Sodomy law, came to the very threshold of declaring -- on the basis of "privacy" -- a "right" to gay "marriage."

Yes, I think this matters. If we are to have gay "marriage," the courts should not create it as a constitutional right.

Fr Martin Fox said...


Let me add this as well, about the "upcoming fight": I think the fight, itself, is well worth having.

Some caricature this thinking as "itching for a brawl"; and, I admit, it's only a semi-caricature: as a former, full-time political activist, I did itch for such brawls.

But here's the thing: I happen to believe that such a "brawl": i.e., a debate and an actual decision, over substantive policy, is politics at its best.

Of course, it remains to be seen if any substantive ideas of jurisprudence will be debated. But a "brawl" -- debate and a vote -- over the meaning of the Constitution, over the means and ends of judicial review? Yes, I think that's a very good thing.

I also believe -- as someone who does care about the outcome of elections -- that debates, followed by votes -- over "divisive" issues is a good thing.

I think elections should be about such choices; and forcing politicians to cast votes that matter, gives the electorate the opportunity to have elections that matter.

Certainly, many tactics in politics are disreputable; but forcing (i.e., through public pressure) politicians to vote for or against legislation, for or against a nominee, and then holding them accountable for that at the election? I understand why politicians don't like it; but I think it's entirely honorable and salutary.

Thus can this battle be worthwhile even if Mr. Alito fails to be confirmed.

Paul, just this guy, you know? said...

Dred Scott is not still the law of the land. Neither is Plessy v. Ferguson. The Berlin wall came down. The 2004 election was conceded without weeks of litigation. These last two I never expected to see. Roe could be overturned. Then we could have an actual democratic process to decide the issue; which would take years.

Father, your prediction is already coming true, they're questioning his performance as a prosecutor in a mafia case in which he didn't get a conviction, implying that his Italian heritage motivated him to go easy on mafiosos.

Look for a bogus sexual harrassment case (a la Justice Thomas), or a foreign nanny (as in Linda Chavez' nomination to the cabinet in 2001).

Darwin said...


Actually, I'd say that most movement conservatives (which is only a semi-overlapping group with pro-lifers in general) are hoping that the supreme court would simply rule that the constitution does not speak to the question of abortion, and that it must be determined by the legislative branches at the national and state level. Few conservatives (though some pro-lifers who are not movement conservatives) are pushing for the temporary-activist-court-that-bans-abortion-outright you seem to be envisioning.

However, under the current SCOTUS thinking, the legislative branch has very little power at all over abortion regulation -- leaving the US as the western democracy with the most permissive abortion laws even though the population is less in favor of abortion than in most other western nations.