Giving Away the Store

Ted Kennedy, as usual, will have nothing of substance to say against Alito, but he will snarl and bluster in his inimitable way about back-alley abortions and a return to the Dark Ages. It should be fun. John Roberts showed us how easy it is for a serious thinker to puncture the pomposity of these senatorial blowhards, and Alito is a serious thinker.

Unfortunately there are pro-life conservative commentators and Republican Party advocates who are giving away the store on the abortion issue in their attempts to make the case for Alito’s appointment. They would do well to rethink their case.

What are the conservative talking heads and Republican spinners saying that is getting my goat? It is their effort to downplay the significance of abortion in the debate over Alito’s nomination. Their message seems to be that it is some quirk of fate that Alito’s originalist approach to Constitutional issues poses a threat to legal abortions; that his strict constructionism is what is important, not his views on Roe v. Wade.

Might this stance be nothing more than a strategy to defuse the explosiveness of the abortion question in the upcoming hearings? Perhaps. But even if that is what is going on, the end result of what is being said could be a strengthening of the case for legal abortion. Alito’s appointment would be a good thing for the country, but not at that price. Let me give you a few examples of what I am talking about.

Rush Limbaugh’s tack has been to move the importance of abortion to the edges of the debate over Alito’s suitability for the Court. He argues that “abortion is just one small part” of what is at stake and that “the Constitution” is the central concern. Former Attorney General Ed Meese said the same thing in an interview with Sean Hannity. Meese maintained that “abortion is not an important issue” in the debate over Alito’s nomination; that Alito’s “originalist view of Constitutional law” is what makes him an attractive candidate. Hannity’s defense of Alito is that “his personal beliefs will not affect his decisions.”

Laura Ingraham’s approach is much the same. She argues that an examination of Alito’s decisions that appear to be pro-life actually “do not tell us whether or not he is pro-life”; indeed that this question is irrelevant; that what Alito’s was doing with his decisions that were applauded by pro-lifers was “applying legal precedents” and “respecting the right of the legislature to deal with this matter.”

Bill O’Reilly was pleased to inform his audience that there have been several instances — such as Alito’s decision against a New Jersey ban on partial-birth abortions — that make clear Alito is “not an ideologue”; that his concern is with abiding by precedent, rather than “imposing his morality” on society. The same point was made by Jonathan H. Adler, visiting professor at James Mason School of Law, in an op-ed column in the Wall Street Journal on November 1st.

Adler held that Alito’s decision in the New Jersey partial-birth abortion case was based on his view that the New Jersey ban was “inconsistent with prevailing Supreme Court precedent. Five years earlier, he joined a majority opinion that deferred to an executive branch agency’s interpretations of federal law, even though doing so meant blocking a state from limiting government funding of abortions. In short, his record is neither that of a ‘pro-life’ or ‘pro-choice’ judge, but of a ‘pro-law’ judge.”

And what’s wrong with all this? Isn’t it true that we want a strict constructionist and an originalist, a judge who will respect legal precedent? Yes. Except when the issue is abortion. Then it doesn’t matter. I’m serious. If we really believe that abortion involves the killing of an unborn child, it is in a separate category from issues such as affirmative action programs, censorship and zoning regulations. Abortion is not a side bar to the debate over the proper relationship between the Supreme Court and the legislature.

I’ll go further: We should be looking for a judge who will be called a judicial activist by defenders of legal abortion, if that is what it takes to overturn Roe v. Wade. No matter how long Roe v. Wade remains on the books, it will not become a judicial precedent deserving of our respect. A law legalizing killing cannot be debated in the way we debate eminent domain or federal budgetary authority.

Is this being hypocritical? I don’t think so. Everyone — everyone — agrees that there are times that the established law should not be respected, times when strict constructionism and a respect for legal precedent are misguided, when principle and a concern for basic human rights should trump the debate over judicial process. For example, every high school student in the country is taught that it was shameful for the Supreme Court to decide as it did in the Dred Scott decision; that returning Scott to his slave-master because he was “property” was an unforgivable adherence to the letter of the law. Similarly, we do not teach our children that the Nazi defendants at the Nuremberg trials should have been held blameless because they were abiding by the established law of the land in Germany at the time.

Let’s cut to the chase: It is not an admirable trait for a judge to state proudly that there may be times when his duty to uphold the law and respect legal precedent will make it necessary for him to decide a case in a manner that will result in the death of more unborn children. I am not saying that Samuel Alito will say anything like this in his confirmation hearings. I am confident that he will put a fine edge on this question. But many of his conservative defenders are making exactly that point.

I don’t want to give the Democrats any ammunition to help them in their effort to defeat Alito’s nomination. But here’s the question they should ask him: “Judge Alito, do you believe that a judge who is convinced that an abortion involves the killing of an unborn child is ever morally free to decide a case in a manner that permits that killing to take place?” Alito and those who support him have an obligation to deal with this question, to think it through whether or not the Democrats ever ask it. It is a question that would put any Catholic legislator who takes the “personally opposed but” position on abortion on the spot at least as much as it would a candidate for the Supreme Court.

James Fitzpatrick's novel, The Dead Sea Conspiracy: Teilhard de Chardin and the New American Church, is available from our online store. You can email Mr. Fitzpatrick at

(This article originally appeared in The Wanderer and is reprinted with permission. To subscribe call 651-224-5733.)

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