Wednesday, November 02, 2005

Alito's Way

I'll join the chorus of people right of center who are pleased that the Miers nomination was withdrawn and that the President nominated Judge Alito for associate justice. Ann Althouse has been making several excellent posts, including one that links to this AP story. My own view on the Miers nomination was that the President tried to deliver a solid conservative vote in the way that has become customary in the post-Bork era--without having to reveal the nominee's judicial philosophy during the confirmation process.

Admirably, and to the benefit of the country, when the conservative base didn't seem to get the message, the President responded by sending it in an unmistakable way, with a judge with solid conservative and intellectual credentials and over a decade of judicial opinions. Let's call that Alito's way. Since these Supreme Court confirmations seem to reduce to the abortion issue, here (quoting from the article) is why the President's message to his base is so clear:

Among his noteworthy opinions was his lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion," Alito wrote.

The Supreme Court, in a 6-3 ruling, struck down the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.
That's clarity.

I have to say that I am sympathetic to the reasoning behind Alito's opinion. I firmly believe that no government should have the power to compel a woman to endure childbirth if she decides she doesn't want to. I have wrestled with the competing claims--that one wins. But laws regarding notification don't presume that power. They may have the outcome that an abortion is avoided. If the state legislators in Pennsylvania, on behalf of their constituents, have decided that avoiding that outcome trumps other social considerations, then they should by all means enact such a spousal notification law. This is an issue that should be resolved in Harrisburg, not Washington, DC.

And my belief that with a Justice Alito on the Supreme Court, more issues will be resolved by legislatures rather than courts, is why I hope Alito is confirmed.

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Bibamus said...

I don't understand this position at all. You state that: "I firmly believe that no government should have the power to compel a woman to endure childbirth if she decides she doesn't want to." Agreed. Yet you applaud reconfiguring the Supreme Court in such a way as to make it more likely that government would have precisely that power. Setting aside the particulars, I think we can agree that a Court with Alito in O'Connor's seat is marginally more likely to overturn Roe. Overturning Roe gives governments the power to outlaw abortion. Am I missing something?

Bibamus said...

And while I'm here, let me add that it is hard for me to be so blase about the spousal notification portion of the ruling you mention. It would seem to me to be prima facie evidence that something has gone tragically wrong inside of a marriage that a wife would not discuss this with her husband of her own free will. It is extremely difficult for me to see what public good such a law would serve. It is extremely easy for me to imagine how this would lead to women getting hurt very badly. It seems to me a very bad law, its Constitutionality notwithstanding.

Andrew Samwick said...

If Roe v. Wade were not upheld, then the issues would go back to the legislatures. I would join coalitions that sought to make sure that access to abortions is available. I would do so to the point of amending the Constitution to guarantee it.

But I do not object to parental consent laws for minors and notification laws for spouses, as they have been implemented typically. (I feel more strongly about the former.) The public good they serve is to reduce the number of abortions. I understand that they have costs (which I would like to see addressed with severe penalties for violence against women).

I think the government works best when you and I, via our elected representatives, sort these issues out directly. I want citizens and legislatures to be more active, so that courts don't have to be.

elhuevon said...

Do you actually believe that Miers was a serious nominee?

My take is that she was the fall-woman so that Bush could nominate a more conservative MAN with a long record and say to the American people "Well, I tried to go with a woman but THEY wouldn't let me."

Andrew Samwick said...

I suppose that I do, in the sense that I believe the WH was surprised by the reaction.

If the objective was to get the most conservative woman, whom should they have nominated from the beginning, and would that person have been a worse outcome for the conservatives than Alito?

Bibamus said...

Let me be honest - in principle, I agree with much of what you say. But in practice, I cannot accept the outcomes of what you suggest.

Overturning Roe will, in practice, mean that some states will outlaw abortion. I impute (reasonably, I think) the probability of amending the Constitution to protect abortion rights to be approximately zero, at least in my lifetime. And I cannot imagine anything I (or you, for that matter) could do, in a post-Roe world, to guarantee the abortion rights of poor mothers in states like Alabama or Oklahoma.

So I think we need to be a little more honest about what the choices here are:

For my part, I am willing to defend Roe to the point of violating whatever principles I may hold regarding democracy or judicial restraint in order to preserve the protections it provides.

You appear willing to deny, at least in the short term, abortion rights to a great number of women in order to uphold whatever principles you may have regarding democracy and judicial restraint.

In the end it's a judgement call, and I think that honest people will just disagree. But I think it tips the scales in your favor to ignore how post-Roe America will be a tragic place for a lot of women, or to pretend that there will be all that much we will be able to do for them.

Nathan said...

on another topic in the news, what are do you think about interest rate trends in the U.S.? what should people be watching on inflation, employment and other economic indicators?

Andrew Samwick said...


I do not mean this to be inflammatory, but I think the public good is that there is one more heart that gets to keep beating.

I believe, and I would feel comfortable asserting on behalf of the PA legislature, that they thought that at least some of the reductions in the abortions would come from men telling their wives, "We can and should make this work." Weighing that against other less hopeful outcomes is where I think this is a legislative matter.

I take your point about the terminology here and appreciate your comment.

Justin said...


Check out this post on Abortions and Risky Sex at Marginal Revolution which links to this paper.