President Bush set the stage for a fight when he nominated Samuel A. Alito to the Supreme Court. But let’s be clear about this one thing: This is a fight conservatives have been avoiding for years.
At stake is whether Supreme Court justices should interpret the Constitution or make law according to their own political whims.
The latter scenario should be scary to both liberals and conservatives. It is about giving up the rights carefully enumerated in the Constitution to five or more political ideologues, unaccountable to no one and reducing our elected representatives to mere set dressing.
It is not a big secret as to why the extreme left has been pushing us in that direction. It was the only way these folks could hope to push their unpopular ideas down our throats. Unfortunately, many on the right seem content to push us in the same direction. In short, we have lost our way.
This fight is not about having nominees who will pledge allegiance to our particular set of litmus tests. It is about finding principled men and women who will be content to be umpires on a level, legal playing field, who will strictly interpret the Constitution, not play favorites by trying to find rights that don’t exist lurking around in the shadows of that historic document.
The left has been very vocal about its concern that Judge Alito may not rule its way on abortion matters. Privately, some on the right are worried about the very same thing. Why? Judge Alito has a split record on abortion cases.
As a member of the 3rd Circuit Court of Appeals, Judge Alito agreed with the majority in Planned Parenthood v. Casey that Pennsylvania’s informed consent and parental consent requirements were constitutional – a ruling that was upheld by the Supreme Court. However, he disagreed with the majority on the issue of spousal notification and argued that this portion of the statute also was constitutional, a conclusion the Supreme Court later refused to adopt.
His vote to uphold that spousal notification requirement in Pennsylvania is being portrayed as controversial by the left wing. It is, however, a primary example of judicial restraint. Judge Alito was attempting to follow Supreme Court precedent, which is exactly what a circuit-court judge should do.
For the previous several years, Supreme Court justices – especially Justice Sandra Day O’Connor, whom Judge Alito would replace – had speculated about a standard for deciding abortion cases that would be more workable than the discredited standard in Roe v. Wade. They appeared to have settled on the rule that regulations imposing an “undue burden” on the abortion decision would be unconstitutional. The high court had not, however, defined what “undue” means.
Judge Alito looked at the clues and followed Justice O’Connor’s previous guidance that an undue burden imposes a veto or severe limitation. Requiring notification, as opposed to consent, does not fit this narrow definition. Judge Alito’s position was a common-sense, good-faith, totally reasonable position.
In a second abortion case, Planned Parenthood v. Farmer, Judge Alito voted to strike down New Jersey’s ban on partial-birth abortion. It is important to remember that the Supreme Court had recently struck down Nebraska’s nearly identical partial-birth abortion ban. As a lower-court, Judge Alito’s court had no choice but to apply this ruling.
In an abortion related case, Blackwell v. Knoll, Alito provided the deciding vote in another challenge to Pennsylvania law which dealt with restrictions on the use of Medicaid funds. Congress had allowed Medicaid to pay for abortions only in cases of rape, incest or to save the life of a mother. The state had required women using these funds to have reported the attack or abuse to authorities. In the case of a threat to a woman’s life, the state required a certification from a doctor, apart from the abortionist. Alito voted to strike the requirement because it was in conflict with the federal policy.
In still another abortion related case, Alexander v. Whitman, he supported a New Jersey law that prevents parents from suing for damages on behalf of a wrongful death of an unborn child because the Supreme Court has not afforded protection to the unborn.
In three of these four cases, Judge Alito came down on the side of abortion advocates. However, in each of these cases, he did what a good circuit-court judge should do – nothing more, nothing less.
So, let this rumble begin. The country has needed this fight since 1987 when “Bork” went from a noun to a verb. Since that time, Republican presidents have picked stealth nominees without records on the controversial issues, with mostly disastrous results.
I pray conservatives still remember what the fight is all about.
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