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Jewish World Review March 9, 2004 / 16 Adar, 5764

Cal Thomas

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What is the law? | Two comments about law may bring some clarity to the raging debate over same-sex "marriage" and other issues that shape our destiny.

"The observance of the law is the greatest solvent of public ills." That was Calvin Coolidge in his acceptance speech for the vice presidential nomination on July 27, 1920.

About 1,900 years earlier, another commentator said, "We know that the law is good if one uses it properly " (emphasis mine). The author of that remark was Paul, the Apostle, in a letter to his young protege, Timothy (1 Timothy 1:8).

One explanation for how we arrived at the present moment when the very meaning of law and faithfulness to it are under attack is contained in the private papers of the late Supreme Court Justice Harry Blackmun, which were opened to the public last week by the Library of Congress.

The papers reveal that rather than abiding by the Constitution, which justices and most high government officials take an oath to sustain, Blackmun believed that the historic document he had sworn to uphold could, and in his view must, be altered to reflect personal biases. What's more, Blackmun persuaded or encouraged other justices to embrace such constitutional heresies. That made Blackmun and those who joined him a law unto themselves.

Blackmun's signature work was Roe vs. Wade (1973), an example of unparalleled judicial overreach. In a 1995 videotaped oral history, Blackmun spoke about his efforts to persuade Justice Sandra Day O'Connor that the Constitution contains a "right to privacy" that extends to the right of a woman to terminate her pregnancy at any time, for any reason.

"I have often suspected that Justice O'Connor has been uncomfortable . because of the possibility that she might have to become the fifth and deciding vote (if Roe vs. Wade were challenged)," Blackmun said. "She is a believer in states' rights .. On the other hand, she is a woman and may fear somewhat any accusation of being a traitor to her sex. Some women's organizations would so conclude."

A traitor to her sex? Some women's organizations? What about the growing majority of women who oppose abortion at some or all stages? What about other "women's organizations" that believe differently from the ones Blackmun cited? They did not count in his eyes. Only what the "pro-choice women" and their organizations believe mattered to him. But if the law is supposed to take precedence over cultural considerations, why should it matter what any group thinks?

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Blackmun's notes also expose attempts by law clerks to influence justices. Many law clerks are educated at schools that share Blackmun's judicial philosophy rather than the "original intent" philosophy embraced by Justices William Rehnquist, Antonin Scalia and Clarence Thomas. On Jan. 4, 1992, law clerk Molly McUsic wrote Blackmun about Planned Parenthood vs. Casey, a case that might have served to reverse Roe. That was a presidential election year, and McUsic's note to Blackmun suggested that he consider the political implications of overturning Roe that year. "If you believe that there are enough votes on the court now to overturn Roe," she advised, "it would be better to do it this year before the election and give women the opportunity to vote their outrage."

Roe survived because Justice Anthony Kennedy (a Reagan appointee, like O'Connor) switched his position and decided to vote with O'Connor and Justice David Souter (a George H.W. Bush appointee) to uphold it. Blackmun's notes reveal that Kennedy "was especially worried about the attention he would get as a Roman Catholic reaffirming Roe." If he was that concerned, he might have consulted with Justice Scalia, a fellow Catholic, who believes Roe was incorrectly decided. Instead, Kennedy chose Blackmun, a Methodist, who saw Roe as his great legacy.

The Blackmun notes are an important contribution to the debate about what kind of judges should sit on the Supreme Court and other high courts. Sen. John Kerry, the presumptive Democratic presidential nominee, favors those who share Blackmun's judicial philosophy. President George W. Bush wants judges who don't make law but apply what has already been written by the Founders and by the people's elected representatives.

This is a worthy debate, and President Bush should make clear the consequences of judicial freelancing and the benefits of law that is used "properly."

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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