Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times....
[He wrote:] "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
Whattya know? The Constitution requires equal protection under the law and that means ethnic quotas are illegal. Who would've figured? And the Constitution also says nothing about abortion, too. Fancy that! This is news to those who don't read the Constitution and want it to say other things entirely. But for the life of me, I can't find the Affirmative Action clause or the Abortion clause. I do, however, know that the Constitution has an Equal Protection clause and a 10th Amendment (confirming that states have Police Powers, which the Federal government does not).
Of course, this supposedly bombshell news is spun by Republican committee staffers to try to play to the Democrats, again. It's spun this as a denial about how Alito would rule on Roe v. Wade:
A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right. "No, it proves no such thing," said the Republican, who spoke on the condition of anonymity. "In fact, if you look at some of the quotes of his former law clerks, they don't believe that he'll overturn Roe v. Wade."...
"Ruth Bader Ginsburg had a long history of advocacy on behalf of liberal causes, but she was evaluated on her 13-year record as a federal judge and her jurisprudence, not her belief that there was a constitutional right to prostitution or polygamy."
It's true that Ginsberg advocated on behalf of liberal causes, and while she's a smart judge, she is unquestionably also a Judicial legislator. Alito will not legislate from the bench, but if Alito retains any of the brains he had when he wrote that memo, he should overrule Roe v. Wade if it ever presents itself again. One doesn't ratify abortion rights while sincerely believing that the Constitution does not protect them. If he does and fails to overturn Roe, he'll betray his inner logic regarding the Constitution, and would be establishing himself as a legislator rather than an impartial umpire. If the people want abortion-rights, they can write and pass an abortion Constitutional amendment. Otherwise, pipe down, NARAL.
It's not likely that Alito will transform into a Supra-Legislator on the bench, however:
"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.... "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."A-frickin'-men. Alito apparently reads, and understands, the Constitution. Wow. What's strange is that while Republican committee staffers want to avoid the issue of Roe v. Wade, they DO want to evaluate his judicial temperment:
Republicans are relishing the opportunity to defend Judge Alito's support for judicial restraint, saying it puts him squarely in the majority of American public opinion.But if they debate his judicial philosophy, it will necessarily involve a debate about Roe. The Republicans don't seem to understand that. If Alito firmly establishes himself as a person who rejects judicial legislating, then absent some irrational protection of precedent, he should overrule Roe. Judicial temperment might be an adequate proxy substitute about Roe, especially since the source of decisions like Roe is the faulty temperment and inflated sense of superiority in the Court. But Democrats aren't idiots and know what a fight over judicial temperment means. It's strange that the Republicans want a fight about that, but not about Roe. Perhaps they're merely too afraid to state the obvious: a restrained Judge who sincerely reads the Constitution could never support a ruling like Roe, and has a duty to overrule it. And if they really believe it's a debate the Republican Party wins every time, then they should follow its logical conclusion.
"We're delighted to have a debate over judicial philosophy and the proper role of courts in America," a Republican strategist said. "That's a debate the Republican Party wins every time."
Still, this news is very satisfying. I was beginning to have doubts about Alito. Now, I'm a lot more satisfied.
Update: Further Discussion from Captain Ed. And Jay Anderson says this will make both the left and the right happy. Patterico says he was happy to get Alito without a fight, but that it's likely we'll get the fight we were looking for all along. More from Stop the ACLU (crossposted at Prolife Blogs) as well as Blogs for Bush, and ConfirmThem.
Further Update: Professor Bainbridge says that this "unequivocal statement of commitment to conservative values" means that Alito is the anti-Miers. He's right. This is no stealth nominee, and should forever destroy the notion that a conservative must be stealthy in order to be confirmed to the Supreme Court. More importantly, he notes that "only by standing up to Bush and the party loyalists were conservatives able to get a judge who gives us a shot at advancing movement concerns." You can say that again. We cannot let up in our demands for conservativism in ALL branches of government. The Prof. isn't quite as happy as me on this news though, noting that Alito wrote this before the Casey decision and thus could be further influenced by precedent. But hopefully Thomas and Scalia's influence will shoot that lingering concern down, if it is a lingering concern.