Another Dud

March 2006By Dale Vree

Dale Vree is Editor of the New Oxford Review.

For prolifers, President Bush's nominations of John Roberts and Harriet Miers were duds. When Miers was forced out, Bush nominated Samuel Alito. With the Democrats snarling and bellyaching, you'd think Alito is an angel. What the Dems want is for Alito to pledge his fealty to Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. (The Dems, of course, must play to their base and their donors.) But with abortion issues still in play in the courts, the meticulous Alito need not reveal his hand on Roe. Of all the candidates Bush has nominated for the Supreme Court, we like Alito the best. But still he won't vote to overturn Roe, and let us tell you why.

On the same day Alito was nominated (Oct. 31, 2005), he met with pro-abortion Sen. Arlen Specter, Chairman of the Senate Judiciary Committee. Alito told Specter of his respect for precedent (and Roe is precedent), adding, according to Specter, that "when a case has been reaffirmed many times [as Roe has been], it has extra weight" (USA Today, Nov. 1, 2005). Later, Alito met with Sen. Joseph Lieberman, and Alito told him, according to Lieberman, that "Roe was precedent on which people, a lot of people relied, that it had been precedent for decades and therefore deserves great respect" (The New York Times, Nov. 9, 2005).

Alito has been a judge for 15 years on the Philadelphia-based Third U.S. Circuit Court of Appeals. He has heard six abortion cases, and in five of those cases he came down on the pro-abortion side.

As for the one case where he came down on the prolife side: In 1991 there was a challenge to a Pennsylvania law that required married women to notify their husbands before getting an abortion. Alito voted to uphold the Pennsylvania law. Writing in National Review (Dec. 5, 2005), Edward Whelan of the Ethics and Public Policy Center (George Weigel's neocon outfit), says the Pennsylvania law "was in fact mild." Whelan, who amazingly is writing in favor of Alito, says: The wife seeking an abortion "was not required to do so if she instead stated that a) her husband was not the father of the child, b) her husband could not be located, c) the pregnancy resulted from spousal sexual assault that had been reported, or d) she had reason to believe that furnishing notice would likely result in bodily injury to her. Notice was also not required in the event of a medical emergency. Further, as Alito observed in an aside, it was 'glaringly apparent' that this provision would be 'difficult to enforce and easy to evade.'" It was easy to evade because it required no proof other than the woman's word that she had told her husband. Then there was Justice Sandra Day O'Connor's 1989 "undue burden" test for women seeking an abortion to be considered. Women wanting an abortion cannot be held to an "undue burden." But what is an undue burden? Whelan says: "Alito carefully explained why O'Connor's own analysis supported his judgment that the provision passed her ['undue burden'] test.... O'Connor — famous for her inconsistency — was part of a five-justice majority [in 1992] that ruled that the spousal-notice provision did constitute an 'undue burden'...."

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Back to March 2006 Issue

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Well, finally. The opportunity to comment on that new-fangled invention of Al Gore's, the Internet. Nothing like a little modernism.

My comment: someone once said that, in politics, it makes no sense to "make the perfect the enemy of the good." That is why, in the economic arenay, President Bush did not veto the tax cuts of 2001 even though they contain a provision terminating them.

Imagine, if you can, the chances Justice Alito would have had to be confirmed by the U.S. Senate if, in his remarks to the Senate Judiciary Committee he had said: "Senators, if and when you confirm me, I intend to do everything in my power to overturn Roe v. Wade."

It shouldn't take a genius to see that such a stance would have significantly reduced the judge's chances of confirmation.

I completely agree with your views on the absolute immorality of abortion. Living in an imperfect democracy in which the counterculture of the 1960s is still the guiding light of so many Americans is a moral tragedy. However, if you can't see that the complicated hold that even weak conservatives have on the levers of power in America is tenuous at best, and if you don't understand that the only alternative to these weak-willed Republicans is a a regime of cultural warriors such as Hillary Clinton, Al Gore, John Kerry, NOW and NARAL and others like them, then I strongly urge you to stick to your more theological strengths and leave political machinations to other, more Machiavellian, operators.
Posted by: jcshea
May 15, 2006 08:52 AM EDT
I think it's time for a nominee to the Supreme Court who has the courage to point out that Roe vs. Wade was decided improperly. The pro-aborts have been setting the agenda for far too long. They are able to get away with their pro-Roe litmus test because no one will stand up and challenge it.

In my opinion, the president should have called the Senate Republican leaders into his office and told them, "I'm nominating Judge So-and-so to the Supreme Court, and I want you to make sure that he gets confirmed." Unless and until he's willing to do that, we run the risk that Republican nominees to the Supreme Court will be in the mold of Justices Kennedy and Souter.
Posted by: Fr_Richard
May 23, 2006 05:05 PM EDT
We might note, to be fair, that President Reagan did try to get Judge Robert Bork onto the Supreme Court. Bork almost certainly would have voted to overturn Roe vs. Wade; in fact, if you'll recall, the reason that he didn't get confirmed is that he had the courage to stand by past writings in which he criticized the decision. Even some Republicans - such as Arlen Specter - voted against him. Perhaps Senate Republicans could have done more to get him confirmed - perhaps Reagan himself could have done more - but Reagan did nominate him.

Much harder to explain, much less to defend, is Reagan's having nominated Sandra Day O'Connor.

With the Bork nomination, the Democrats (then, as now, in the majority in the Senate) changed the rules of the nomination process by allowing a litmus test, as long as the test indicated, at the very least, a disinclination to tamper with Roe vs. Wade. Maybe the Republicans can't do much now that they're in the minority, but they sure didn't capitalize on their majority status when they had it.
Posted by: Fr_Richard
January 13, 2007 08:04 PM EST
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