Tags: Alito | Wanted | Overturn | Roe | Wade

Alito Wanted to Overturn Roe v. Wade

Friday, 02 December 2005 12:00 AM

The Reagan administration documents shedding further light on the views of Samuel Alito Jr. about abortion are of critical importance in evaluating his nomination to the court. The fact that Alito was no mere enthusiastic job applicant in seeking to overrule Roe, but an active administration strategist looking for an "opportunity to advance the goals of overruling Roe v. Wade and, in the meantime, of mitigating its effects" matters to what kind of justice he will be.

He was willing to inflict great pain upon women in the process, as the price for their "moral choice." To the consternation of many of my readers, who think I have forgotten that good judges are bound to apply "the law," the personal philosophy of a judge ultimately matters a great deal in how he judges, particularly on the highest court, where each question poses an unsettled issue that could go either way, and which "the law" doesn't necessarily resolve. He has to decide which side he's on, and, whether you want to admit it or not, that's his moral choice.

Consider the abortion issue, if you're Samuel Alito Jr., and you believe, as he clearly does, that Roe was wrongly decided. What that means is that he reads the same words the Supreme Court does and the same older cases not to include the right to choice they do. How do they do that? "The law" is the same. Smart people read it differently, based on what they believe in. Who's right? What they say is the law, but he thinks the law is wrong. Why? (Hint: moral choice, easily packaged in different readings of "due process.")

Then you face the issue as a justice. Do you respect precedent, one version of what the law tells you to do? Or do you right the mistake of the past, and get the law right, as you see it? There's precedent for doing that, too – we went back on the slavery cases, after all, and on separate but equal. Which do you do?

Part of it depends on how settled the new rule is, and part of it depends on how "wrong" it is, but who's looking determines what the answers are to those moral choices.

There are many judges who grow on the bench, sometimes to the consternation of those who put them there and the appreciation of the country as a whole. But to grow requires some openness of mind, which is the minimum that the public requires. Its absence is what sank Judge Bork in his hearings far more than the substance of his views. His arrogance made clear that he didn't listen. In a polarized electorate, that's how you swing the middle.

Judge Alito is likely to do better on that score. He does not come across as an arrogant man, or an ideologue. In his testimony, he will have to seem fair-minded, not renounce his past views, but keep explaining the difference between being an advocate and a judge (a weak argument, for all the reasons above, unless he was an unwilling advocate – but it's the best he has) and his respect for precedent.

That probably won't help with Democrats, not with these latest revelations. In one of his memos, Alito argued that the state could require that women who were about to undergo abortions be provided with literature including information about fetal development and "unforeseeable detrimental effects" of the procedure, as well as adoption services, even if doing so might cause "emotional distress, anxiety, guilt and in some cases physical pain," because this is the price for their "moral choice."

This is exactly what Democrats and pro-choice activists have had every reason to fear in a Supreme Court nominee since George Bush was elected. Harriet Miers was a gift, and this is Harriet's revenge.

P.S. to Arnold watchers: Of course he'll pardon him – Stanley (Tookie) Williams, I mean, the slated-for-execution Crips founder and anti-gang legend. Schwarzenegger just hired the former executive director of the California Abortion Rights Action League and the California Democratic Party to be his chief of staff. Arnold is many things. Stupid is not one of them. He's learning for his life. Were you betting on someone else?

COPYRIGHT 2005 CREATORS SYNDICATE INC.

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The Reagan administration documents shedding further light on the views of Samuel Alito Jr. about abortion are of critical importance in evaluating his nomination to the court. The fact that Alito was no mere enthusiastic job applicant in seeking to overrule Roe,...
Alito,Wanted,Overturn,Roe,Wade
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2005-00-02
Friday, 02 December 2005 12:00 AM
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