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November 04, 2005

Bork Alito

Good enough for me:

He has certainly said the right things: “Judges should be judges. They shouldn’t be legislators, they shouldn’t be administrators.” That that should be refreshing, that it should even need saying, shows how far sunk in activism our courts, and particularly the Supreme Court, have become. Alito is a member of the Federalist Society, an indication that he is devoted to the rule of law rather than the rule of judges.

...

We may be confident, I think, that a Justice Alito, like Chief Justice John Roberts, will not vote to create new and hitherto unsuspected constitutional rights. He will not share the extreme liberationist philosophy, one of the hangovers from the 1960s, that characterizes the current Court majority. But, also like Roberts, we do not know whether he will vote to overturn the worst constitutional travesties of the past. And, if he is the superb lawyer he is reputed to be, we will not learn that at his hearings either.

Yet overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. ...

If judgments about the prudence of overruling are invoked, the justices should take note of the fact that Roe lies at the center of the bitter polarization of much of American society. In countries where the issue is decided democratically, no such intense animus exists. Compromises are worked out and each side knows that it is free to continue the public debate in hope of doing better next time. That was, and would be again, the case in America if the subject of abortion were returned to state legislatures and electorates. Overruling Roe would not, as some Democrats will claim, make abortion illegal, but merely the subject of democratic regulation. We have paid a high price for a ruling that rests upon nothing in the Constitution and was arrived at in an opinion of just over 51 pages that contains not a line of legal reasoning.







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