Political Issues
Beware: Political statements ahead!!
In the wake of the circus that was the Samuel Alito confirmation hearings, I find myself extremely disturbed not only by the tactics undertaken by some of the ranking Democrats on the committee, but also by average people’s reactions. And for the record, this isn’t a liberal-bashing rant.
I share the committee’s concerns about the extent of executive power as well as a few other issues but, as was predicted, the central theme of these hearings (like those of John Roberts) was the candidate’s stance on abortion; specifically Roe v. Wade. The primary objection of the Democrats (specifically Kennedy and Feinstein) was that Alito refused to refer to Roe v. Wade as “settled law” as Roberts did during his confirmation. I simply cannot comprehend this. First of all, I believe that an appointment at this or any level should not be based on how someone views a particular issue. Nor do I think it is appropriate for them to comment on issues that may (in this case, will) come before them. Kennedy and Feinstein disagree, attacking nominees on their stances on abortion, stating that any candidate must “answer fully” questions about these issues and that the committee has “a duty to ask where he stands on these issues.” (NOTE: those quotes were referring to Roberts’ nomination, but were applied to Alito as well). However, in the 1967 confirmation of Thurgood Marshall (a democrat), Kennedy stated that “We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court. This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.”
That, however, is secondary to this issue of attempting to force a nominee to identify Roe v. Wade as “settled law.” I think it is dangerous and irresponsible to view any case decision as settled. While I have respect for the concept of legal precedents and stare decisis as the foundation of American case and common law, it is a gross fallacy for a judge, especially a Justice of the U.S. Supreme Court to treat any case law, much less a decision that is as divisive as Roe, as immutable (or even more so) than statutory law. Statutory law can be changed either through new legislation or through judicial review. Case law seems to carry a much larger burden to overturn.
Personally, I believe that in our society, the elimination of abortion is essentially impractical. At this point, morality isn’t the issue. I simply do not see it as possible or practical. I do believe that any late-term/3rd trimester (and even, really 2nd trimester) abortions should be illegal. But I do not believe that I have the right to tell a woman what she can or can not do with her body. I do not think that I could go through with it if the child was mine, but again that’s not the issue.
The rub is this: Roe v. Wade is not settled law. Nor was it an accurate verdict. This is possibly the greatest example of legislation from the bench. Whether or not it was the right thing to do (which can be debated forever), the decision is constitutionally unsound. The basis for finding the Texas state abortion law (and thereby all state abortion laws) unconstitutional and therefore invalid was that it violated the 14th Amendment’s due process clause. It does not. Again, I’m not arguing the right or wrong of abortion, just the constitutional validity of the ruling. People should also realize that if Roe v. Wade were to be overturned, abortion would not become illegal. The decision-making power would be returned to the states.
Ironically, those who fight the most violently to protect this (Constitutionally unsound) decision are the same who scream the most loudly against the death penalty which, by the way, does have a Constitutional basis. Look it up.
The fact is, whether it was for the greater good or not, it was bench legislation. That is not the role of the Supreme Court or the Judicial branch. Just as there is concern about the President overreaching the authority of the Executive branch, the courts must temper themselves. Laws are for the Congress to make. Pro-choice advocates need to realize that there are moral implications to abortion, that it is not an absolute right, and that it is not a form of birth control. However, pro-life advocates need to realize that it’s not going away and focus their energy on ensuring that it is done safely and responsibly.
There comes a time when moral absolutes must be tempered by logic and realism, else they work against the greater good, rather than for.
In the wake of the circus that was the Samuel Alito confirmation hearings, I find myself extremely disturbed not only by the tactics undertaken by some of the ranking Democrats on the committee, but also by average people’s reactions. And for the record, this isn’t a liberal-bashing rant.
I share the committee’s concerns about the extent of executive power as well as a few other issues but, as was predicted, the central theme of these hearings (like those of John Roberts) was the candidate’s stance on abortion; specifically Roe v. Wade. The primary objection of the Democrats (specifically Kennedy and Feinstein) was that Alito refused to refer to Roe v. Wade as “settled law” as Roberts did during his confirmation. I simply cannot comprehend this. First of all, I believe that an appointment at this or any level should not be based on how someone views a particular issue. Nor do I think it is appropriate for them to comment on issues that may (in this case, will) come before them. Kennedy and Feinstein disagree, attacking nominees on their stances on abortion, stating that any candidate must “answer fully” questions about these issues and that the committee has “a duty to ask where he stands on these issues.” (NOTE: those quotes were referring to Roberts’ nomination, but were applied to Alito as well). However, in the 1967 confirmation of Thurgood Marshall (a democrat), Kennedy stated that “We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court. This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.”
That, however, is secondary to this issue of attempting to force a nominee to identify Roe v. Wade as “settled law.” I think it is dangerous and irresponsible to view any case decision as settled. While I have respect for the concept of legal precedents and stare decisis as the foundation of American case and common law, it is a gross fallacy for a judge, especially a Justice of the U.S. Supreme Court to treat any case law, much less a decision that is as divisive as Roe, as immutable (or even more so) than statutory law. Statutory law can be changed either through new legislation or through judicial review. Case law seems to carry a much larger burden to overturn.
Personally, I believe that in our society, the elimination of abortion is essentially impractical. At this point, morality isn’t the issue. I simply do not see it as possible or practical. I do believe that any late-term/3rd trimester (and even, really 2nd trimester) abortions should be illegal. But I do not believe that I have the right to tell a woman what she can or can not do with her body. I do not think that I could go through with it if the child was mine, but again that’s not the issue.
The rub is this: Roe v. Wade is not settled law. Nor was it an accurate verdict. This is possibly the greatest example of legislation from the bench. Whether or not it was the right thing to do (which can be debated forever), the decision is constitutionally unsound. The basis for finding the Texas state abortion law (and thereby all state abortion laws) unconstitutional and therefore invalid was that it violated the 14th Amendment’s due process clause. It does not. Again, I’m not arguing the right or wrong of abortion, just the constitutional validity of the ruling. People should also realize that if Roe v. Wade were to be overturned, abortion would not become illegal. The decision-making power would be returned to the states.
Ironically, those who fight the most violently to protect this (Constitutionally unsound) decision are the same who scream the most loudly against the death penalty which, by the way, does have a Constitutional basis. Look it up.
The fact is, whether it was for the greater good or not, it was bench legislation. That is not the role of the Supreme Court or the Judicial branch. Just as there is concern about the President overreaching the authority of the Executive branch, the courts must temper themselves. Laws are for the Congress to make. Pro-choice advocates need to realize that there are moral implications to abortion, that it is not an absolute right, and that it is not a form of birth control. However, pro-life advocates need to realize that it’s not going away and focus their energy on ensuring that it is done safely and responsibly.
There comes a time when moral absolutes must be tempered by logic and realism, else they work against the greater good, rather than for.