Linda Chavez
Worth pondering once the anti-Alito hyperventilating ends
http://www.NewsAndOpinion.com |
Liberals' response to the nomination of Judge Samuel Alito Jr.,
to replace retiring Supreme Court Justice Sandra Day O'Connor is as
hysterical as it was predictable. Senate Minority Leader Harry Reid,
D.-Nev., blamed the "radical right wing" for Alito's selection. Failed
Democratic presidential nominee Sen. John Kerry, D.-Mass., echoed the
sentiment. "Has the right wing now forced a weakened president to nominate a
divisive justice in the mold of Antonin Scalia?" Kerry asked, rhetorically.
And it wasn't just senators, but left leaning interest groups that joined
the fray. Ralph Neas of the mis-named People for the American Way warned,
"Replacing a mainstream conservative like Justice O'Connor with a far-right
activist like Samuel Alito would threaten Americans' rights and legal
protections for decades."
For all the talk of right-wing coups, Alito is no radical but a
judicious, thoughtful, and careful jurist with one of the most impressive
resumes of any nominee in modern Supreme Court history. He's been a career
lawyer in the Justice Department's Office of Legal Counsel, a federal
prosecutor with a distinguished record of prosecuting organized crime, and
an appellate judge for more than 15 years. You couldn't find a better
prepared candidate, unlike President Bush's previous nominee, Harriet Miers,
whose nomination floundered when it became apparent she lacked experience
dealing with constitutional issues. So what exactly are Democrats so afraid
of?
It boils down to one issue: abortion. Democrats have been
worrying for years that Roe v. Wade would be reversed when a Republican took
the White House and began appointing justices to the Supreme Court. They
warned about it during President Reagan's and President George H.W. Bush's
terms, inveighing against their nominees to the Supreme Court during Senate
hearings. Liberals attacked Sandra Day O'Connor, Anthony Kennedy, David
Souter, and Clarence Thomas for their presumed anti-abortion views, but only
Justices Thomas and Reagan appointee Scalia have consistently opposed the
legal reasoning in Roe v. Wade in their subsequent decisions. Ironically,
Scalia faced little criticism when he was named to the court in 1986 and was
unanimously confirmed by the Senate — touted at the time for being the
first Italian American to be appointed to the high court. O'Connor, Kennedy,
and Souter, despite the dire predictions of Democrats, have repeatedly
reaffirmed the basic outlines of Roe v. Wade.
No one knows how Alito would vote on any future abortion case —
and he's not likely to tip his hand at confirmation hearings, any more than
Chief Justice John Roberts did at his or Clinton-appointed Justice Ruth
Bader Ginsburg did at hers, for that matter. But let's just assume for a
moment that Roe v. Wade will be reversed if Alito is confirmed. Would
abortion suddenly become illegal in the United States? Would women seeking
abortions be forced into back alleys, as the Democrats are fond of
asserting? Hardly. A reversal on Roe v. Wade would simply turn the issue of
abortion back to the states. At the time Roe v. Wade was decided in 1973,
most states were in the process of liberalizing abortion laws. Today, after
more than 30 years of virtually unfettered access to abortion, it is
unlikely that many states would pass restrictive laws.
Public opinion polls show a substantial majority of Americans
would not like to see abortion outlawed altogether, but would favor some
restrictions placed on the procedure. For example, about two-thirds of
Americans would not allow abortions in the fifth or subsequent months of
pregnancy unless the mother's health or life was in danger. Similar
majorities favor parental notification for girls under 18 who seek
abortions — a restriction the Supreme Court has countenanced so long as the
girl could appeal to a judge who could bypass notification. And Americans
overwhelmingly oppose "partial birth abortions," which most often occur late
in pregnancy and involve a particularly gruesome procedure to collapse the
fetus' skull before removing the body vaginally.
Democrats' hysterical predictions notwithstanding, the Supreme
Court — even one dominated by anti-Roe justices — cannot outlaw abortion.
What a reversal of Roe v. Wade would do would be to return this most
divisive and emotional issue to the people to decide through their elected
legislatures. That's no excuse for opposing Samuel Alito.
JWR contributor Linda Chavez is President of the Center for Equal Opportunity. Her latest book is "Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics". (Click HERE to purchase. Sales help fund JWR.)
