Last night, in response to a question from Hugh Hewitt as to whether he would make a deal with liberals on religious liberty, Donald Trump decided to defend the judicial record of his sister, federal appeals court judge Maryanne Trump Barry, on abortion. In doing so, Trump displayed his characteristic ignorance and dishonesty.
Here was the exchange:
TRUMP: Now, Ted’s been very critical — I have a sister who’s a brilliant . . .
HEWITT: Mr. Cruz, will you make a deal about religious liberty?
TRUMP: . . . excuse me. She’s a brilliant judge. He’s been criticizing — he’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.
So I think that maybe we should get a little bit of an apology from Ted. What do you think?
It took me a moment to figure out what Trump was talking about. Judges don’t sign bills.
I soon realized that Trump must be saying that Justice (then Judge) Alito agreed with Judge Barry’s infamous ultra pro-abortion opinion in a case before the Third Circuit. But that couldn’t be right either, could it?
No it is not, as Ramesh Ponnuru shows. The case in question, Planned Parenthood of Central New Jersey v. Farmer, concerned a New Jersey law that banned partial birth abortion. The Supreme Court had already struck down a similar law before the Third Circuit (on which Barry and Alito sat) decided the matter. Thus, the New Jersey law had to be struck down, as well. Judges Barry and Alito agreed on this obvious and narrow point.
But Trump’s sister wrote an opinion that went much further. As Ponnuru puts it, her expansive opinion laid out an argument that would logically justify a constitutional right to infanticide. He explains:
Under the Supreme Court’s abortion jurisprudence, the right to life of a developing human being depended on whether it was inside or outside the womb — and not, for example, on its stage of development. Inside the womb, the child was a fetus with no rights, and outside the child was an infant with rights. Pro-lifers wanted to mark an outer limit to this abortion regime by making it illegal to kill a human being who was partway out of the womb.
Judge Barry said that this was absurd and irrational. It makes no difference where the “fetus” is when it “expires,” as she put it, during an abortion.
But if that’s right, then (as pro-lifers have pointed out before) it can’t make a difference if the child is fully outside the womb either. And she’s right, of course, that the location-based rule of Roe makes no sense. That’s where the irrationality lies. But she would resolve its contradictions by beginning to rationalize a constitutional right to commit and procure infanticide.
Needless to say, Samuel Alito did not sign that “bill.” To state things correctly, he did not join Barry’s opinion. He called it “unnecessary” and “obsolete” given the Supreme Court’s ruling, and stated merely that the higher court’s decision on partial-birth abortion is controlling.
Perhaps Trump used the word “bill” instead of “opinion” in an attempt to skate past the fact that Alito did not agree with Barry’s odious position on abortion. Regardless, Cruz is right about Trump’s sister and Trump knows it.
The woman Trump holds out as a model jurist is obscenely pro-abortion.