|
|
Abortion, Race and Judicial Appointments Anyone who watched or read about the hearings and debates for confirmation of John Roberts as Chief Justice of the Supreme Court and Samuel Alito as an associate justice of the Court is aware the Democrats on the Senate Judiciary Committee and Democrats in floor debate have tried diligently to paint these two men as pro-life to the point where abortion would be outlawed and racists. Abortion and race are not the real issues. The real fight is over the misuse of the courts. Chief Justice Roberts and Judge Alito did not provide any definitive indication one way or the other about how they would rule in the event of different cases and on different subjects. They generally provided only their views about the judicial process and the rule of the courts, which views are essentially conservative in nature. By conservative I do not mean that they will rule in favor of views generally held by conservatives or libertarians. Instead, they will view the role of the courts as being restrained. Preference will be given to original intent of the Constitution and to the roles of the other two branches of government when they are acting within their areas of responsibility and not in an obviously unconstitutional manner. There would also be a preference for restraint in the other branches of government in favor of freedom of states and local governments and individual liberties. In all likelihood there would not be the incompatible opinions which have been handed down recently, such as the California medical marijuana decision versus the Oregon assisted suicide decision. The medical marijuana decision is hard to rationalize when compared to one of the earliest decisions regarding the right to privacy, Griswold v. Connecticut. The medical marijuana case versus the assisted suicide case are even harder to harmonize since control of use of substances was upheld in the medical marijuana case, but not upheld in the assisted suicide case. Hopefully, then, with more conservative justices, decisions would be more rational, and people would be better able to address difficult issues in a public forum where all concerned parties may have some chance to voice their views. However, a conservative approach is exactly what is the problem. The race issue is totally bogus and only intended to engender strong negative opinions of the nominees. We are not going to go backwards on race. What we may have is a more sensible approach to continued discrimination in favor of minorities. However, we shall not have discrimination against them. As regards the abortion issue, if Roe v. Wade were overruled, it is very unlikely that we would have a mass return to making all abortions illegal. However, whether or not the decision is overturned, we shall likely have a more rational approach to laws requiring parental consent and outlawing third trimester abortions. Both of these types of laws were suggested to be permissible in Roe v. Wade. The Court specifically indicated that some limitations on abortion would be appropriate. Subsequent opinions have seemed to indicate that there can be no limitations. Thus, the most likely outcome in the abortion area of a shift in the Court is not making abortions totally illegal, but bringing forth more rationality to the abortion debate through reasoned legislation rather than judicial fiat. If the issues of abortion and race are not the real problem, what is involved in using these issues to frame the debate over judicial nominees? What appears to be of real concern is the use - more properly misuse - of the judicial system. Roe v. Wade is the decision which typifies the problem. The opinion is absurd. It cannot be justified constitutionally, has little sound legal reasoning and, as medical science has progressed, is now on shaky ground medically and scientifically. It was a results-oriented opinion that has little real substance. It is an opinion which would not have ever resulted from legislation, even though legislation may well have gradually resulted in some legalization of abortion in the vast majority of states. Liberals have used the courts to obtain results which they could not obtain in the forum of public debate and opinion. The courts were not intended for this purpose. It is particularly bad when such use of the courts results in supposed constitutional rights which have no real legitimate basis. Such results are not just hard to overturn, but, as we have seen since Roe v. Wade, make it extremely difficult to enact reasonable restraints. How can one rationally believe that it is not important to have a parent's consent for a 14-year-old girl to have a significant medical procedure - an abortion - while such consent is required for a simple everyday procedure - a tetanus shot - to be administered to a person who is one-week short of being an adult? Yet that is the result we have reached. The real issue, then, for which the liberals are fighting is the right to continue to turn to the courts when they cannot get what they want in the forum of public opinion. That fight is one which all of us should want the liberals to lose because such misuse ultimately goes both ways. |
|
