Judge Alito’s testimony, that is; the hearing is still going on. It’s hard to imagine that anyone could be alive for 55 years, and have participated in thousands of appellate decisions, and still be so little subject to criticism. It’s amazing that the best the Democrats could do was the Vanguard case and CAP. Princeton grad TigerHawk has commentary on CAP. I wonder whether any of our readers have back issues of the organization’s magazine. Ted Kennedy kept reading the same paragraph from a single article; it sounded a little odd, and I’d be curious to see the original.
I was surprised to hear on the radio this morning that Laura Ingraham was the editor of CAP’s magazine in the mid-1980s; I believe Dinesh D’Souza was also associated with it at one time. (I can’t explain why Princeton alumni had to turn to a couple of Dartmouth grads to edit their magazine.) Not only does this indicate that the group was squarely in the conservative mainstream, it also renders foolish the suggestion that it was anti-minority and anti-woman.
But that water is over the dam. Did the last two days’ hearings have any long-term impact? I doubt it. There have been many occasions when I thought the Democrats have over-reached and ought to suffer serious consequences, but it never seems to happen. Moreover, one unfortunate thing about these Judiciary Committee hearings, in my opinion, is that the ritual tap-dancing around Roe v. Wade that nominees engage in tends to shore up the idea that the Roe decision was a credible one. Just once, I’d like to see a nominee testify that Roe was wrongly decided; that the Constitution says nothing about abortion; that most legal scholars view Roe as a disastrous mistake; but that whether it should be overturned, at this point, is a question on which the nominee has not formed an opinion. Actually, that’s one of the reasons why I was hoping President Bush would nominate Judge Michael McConnell, author of “Roe v. Wade at 25: Still Illegitimate.” That would have brought the tap dancing to a screeching halt.
Listening to all of the talk about Roe, you could get the impression that the Democrats are obsessed with abortion. To some degree, of course, that’s true. But I think that a broader issue is at stake. When the Democrats talk about Roe, they always put it in terms of stare decisis, the doctrine that ordinarily, the Court will not revisit issues it has already decided. Of course, the left’s fidelity to precedent is selective. In 2003, the Supreme Court decided Lawrence v. Texas, which found a constitutional right to perform acts of homosexual sodomy. In so doing, the Court overruled Bowers v. Hardwick, decided only 17 years earlier. I am not aware of a single liberal who protested this deviation from stare decisis.
Are the Democrats simply inconsistent and opportunistic? Sure, but there is more going on than that. For most of their lives, men like Ted Kennedy and Joe Biden believed that history was flowing in their direction. The world and the United States were becoming ever more liberal. Thus, when Brown v. Board of Education overruled Plessy v. Ferguson, no one complained about the Court’s failure to stand by its 19th-century precedent. For the left, Lawrence v. Texas was in the same category: part of the leftward march of history, and something to be applauded, not criticized. Liberals see the Court’s decisions as subject to a one-way ratchet: non-liberal precedents can be overturned, but liberal ones cannot.
For the left, however, things have changed since the heady days of the 1970s. History doesn’t seem to be flowing their way anymore, and liberals are mostly hanging on, giving ground grudgingly and waiting for better days to return. In this context, the overruling of Roe v. Wade would have significance far beyond abortion. It would mean the end of the one-way ratchet, and would be a visible symbol of the receding of the liberal tide. For that reason, I can understand the Democrats’ feverish efforts to lock Roe in as inviolate, even though the immediate political fallout, if the case were reversed, might favor the Democrats.
That’s why I think that Chuck Schumer made a mistake yesterday when he predicted that Alito would vote to overturn Roe. Over a succession of Judiciary committee hearings, I think the Democrats have been relatively successful in portraying Roe as sacrosanct. But once they have gone on record branding Alito as a judge who will probably vote to overturn Roe, and the Senate has confirmed him anyway, hasn’t the dam been breached? I hope so; time will tell.
UPDATE: A reader writes:
I don’t know if anyone is going to bother to look it up, but the article Senator Kennedy
read yesterday sounded familiar. I seem to remember reading that when I was in college in the mid-80’s as a joke article designed to make the ultra-liberals upset. I wonder if it had been printed on April 1st.
An intriguing idea: did Ted Kennedy and his fellow leftists fall for an April Fool’s joke? If so, it wouldn’t be the first time.
So, who has back issues of CAP’s magazine? We could have a scoop here!