Tuesday, November 01, 2005

Alito's Nomination Needs to Be "Divisive"

George Will has a column that covers just about every rhetorical angle that the Dems are likely to use against Judge Alito.

A few things strike me, though. Will aptly reduces to a few words the judicial philosophy of the Dems by quoting what were most certainly unscripted remarks made by Harry Reid:
When Reid endorsed Scalia for chief justice, he said: "I disagree with many of the results that he arrives at, but his reason for arriving at those results are [sic] very hard to dispute." There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results.

This is what "living document" means. A fair reading of the Constitution is not the issue, but rather how the Constitution might be read. They do not intend to use the Constitution as the means to dictate the end, but rather they contort it to match the political outcome they seek. So, to a very significant degree, the Constitution, rather than being "living" is as dead as the men who wrote it, given that politically convenient and legally spurious meanings are disingenuously blue-penciled into it to unlawfully meet policy objectives, working an end run around the Constitutionally-appointed lawmaking bodies who will not pass bills that further the agenda of the left.

Put another way, imagine a football game where one team regularly clobbers another who simply cannot make it past the 50 yard line. The referees, feeling some desire to give the losing side a break, move the losing side's end zone up by 50 yards in the middle of the game, providing an advantage that did not exist before and ignoring the rules upon which gameplay is based in order to create a situation which in their subjective determination is "fair". But just as certain football teams lose for a reason (either from poor performance, outperformance by an opponent, or some combination of both), candidates lose elections for similar reasons. In a battle over ideas, and voters seem to be favoring candidates who will work to reduce tax burdens and regulation on the private sector, who will protect the interests of families, and who will provide for the security of our nation. The values of the left, larger and more intrusive government, higher taxes for income redistribution, relaxed law enforcement, special rights for homosexuals, expanded access to abortion, sexualizing public school curriculums, racial preferences, a weaker defense and an apologetic foreign policy not only are not preferred, they are roundly rejected by voters.

Which is why judicial appointments are vital to the left. If they can't win elections to force their values upon us, they'll have a like-minded judge do it for them in the form of a binding court opinion based upon a novel re-reading of the law, involving no public debate.

But what is more divisive? Unelected judges who supplant the work of the elected representatives of the people and that of the people's executive, or judges who read the law for what it says and apply it to the facts of the cases before them? A government of known powers, or one that can turn on a dime?

Which brings me to Judge Alito. The Democrats don't like him because he filed a partially dissenting opinion in Planned Parenthood V. Casey, 947 F. 2d 682 (1991). The issue in the dissent was spousal notification. Under Pennsylvania law, a woman seeking an abortion had to first advise her husband. There was no requirement that he approve, but just that he be on notice, subject to certain exceptions. The Democrats over the past day have demonized him as an abortion opponent, using Casey as their fodder. But read the dissent (courtesy of Patterico). Alito's dissent, for those lefties who actually bothered to read it, actually avoids a discussion about the morality and emotion that surrounds the abortion debate, and centers squarely upon the right of the legislature to create a condition precedent to an abortion to be performed on a married woman. In a remark which seems to encapsulate his approach, Alito writes:
Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards. The first step in this analysis is to determine whether Section 3209 has been shown to create an undue burden under Supreme Court precedent, and for the reasons just explained it seems clear that an undue burden has not been established.
To decipher this from legalese, whether the legislature's abortion notification requirement is morally or ethically acceptable is not a matter for the courts. The only thing the court can consider is whether there was sufficient evidence before the trial court to show that the notification requirement created such a structural impediment to obtaining an abortion as to make it an unconstitutional restriction to abortion access. And if you don't prove your case at the trial level, you lose, regardless of how socially meritorious it may be. If there is not sufficient showing of an undue burden, the court can do nothing.

So given that Alito would not let the courts extend their power beyond what the law permitted to defend abortion, the Democrats immediately oppose him. And that raises a few questions about Alito's detractors.

First, if they didn't read the dissent, their commentary on the Judge's abortion stance is uninformed and has no place in the debate. But second, and more importantly, if they did bother to read it and still make the same claims that Alito's dissent indicates that he would overturn Roe v. Wade, turn back the clock on abortion rights, etc., it dovetails right back into Will's observation that the left believes that proper application of the rule of law is secondary to political outcomes. So when conservatives argue that the rule of law matters more than the outcome, there will indeed be "division".

But the complaints from Democrats that Alito is a divisive nominee should be encouraging for many reasons, not the least of which is the fact that Democrats define "unity" as agreement with leftism.

And perhaps the debate that is generated from this nomination will reach such topics as the legal validity of Roe v. Wade, the moral validity of abortion, the powers of courts to alter or even formulate law, and the rights of the people to rely upon laws made by a legislature without fear that an activist court will disturb them.

The Democrats don't want a divisive nominee because the ensuing public discussion will cause people to think about how they permit themselves to be governed and the behavior that is permitted in society and from elected and appointed government officials. The Democrats know that they cannot intellectually defend their policies, and must resort to the demagoguery of ad-hominem attacks, threats, straw man arguments, and the like, hoping that their invecta will cause an opponent to back down or an audience to be swayed by an irrelevant and illogical but emotional appeal. But the more people discover about what the Democrats are peddling, the more they will understand that this party stands for little more than the anti-family, anti-religious, and antisocial values of the ACLU, Hollywood, and other members of the elite far left.

So bring it on.


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