Saturday, September 03, 2005

Katie, Bar The Door

After the death tonight of Chief Justice Rehnquist, the only attractions missing from Washington in the next couple of months will the bearded lady and the dog-faced boy.

With the confirmation hearings for John Roberts scheduled for this week there was already an anticipatory feeling of partisan politics in the air. Now all hell is going to break loose. The Usual Suspects on the Left will come more unhinged than usual; I expect at least one if not more Democrat Senators to seek to postpone the Roberts hearings so they force Bush's hand in picking Rehnquist's replacement before confirming Roberts. (Early odds in Vegas have Schumer, Leahy, and Kennedy leading this effort.) The Republicans controlling the Senate will have none of it and the hearing will go forward, one way or another.

UPDATE: Bush has nominated Roberts as Chief, which is a politically astute move. This will allow the Court to have all nine Justices on the bench if Roberts is confirmed by October, as O'Connor has stated she would continue to serve until her replacement is confirmed. My guess now is that Bush will nominate Edith Clement, who was on the short list to replace O'Connor originally. Clement is also from New Orleans which will not go unnoticed.

In the meantime, the specials interest groups will either reflexively support or savagely slander whomever Bush nominates. NARAL, MoveOn, etc., already have their press releases of condemnation ready to go, they merely await a name to which they can be attached. Pro-life groups will begin a steady campaign of pressuring not only the White House but particularly Senator Specter, the pro-choice Republican who is Chairman of the Judiciary Committee, to nominate and confirm a Justice with what they believe is the proper judicial pedigree.

All of this posturing and pressure has been, and continues to be, misplaced. The Supreme Court is invested, through Article 3, with the power of interpreting laws, not making them. Yet for the past decades that is effectually what the nine unelected Justices have been doing and a complicit American electorate has enabled it to happen.

It should give the pro-choice movement pause to realize that the right to an abortion was given by fiat. It can be taken away in the same fashion and that is why these confirmation hearings are so contentious. It is has become increasingly clear that Roe v. Wade is a poorly written opinion that is antiquated, largely through advances in medical technology. (An interesting survey: Ask people who vigorously support Roe who wrote the majority opinion. Ask them if they know the criteria Justice Blackmun used for determining fetal viability. In short, ask them if they have actually read the opinion.) It took quite a bit of intellectual contortion to "discover" a right to an abortion in the Constitution but it was a logical progression from the Griswold decision of 1965, in which Justice Douglas invented Constitutional rights out of thin air.

Today it is almost unimaginable that people, 40 years on from Griswold, would disagree with the outcome of the decision, but the Devil is in the details. Apparently inventing Constitutional rights is like eating potato chips, it is hard to stop at one. My radical notion here is this: make the men and women that comprise our respective legislatures actually work. We are a Republic, let's start acting like one. For those who desire a woman to have access to an abortion, work in a legislative framework to write and pass laws allowing that access. Those in opposition can work to ban or restrict that access. Amend the Constitution if it becomes necessary.

Protestors of all political persuasions, in the coming days and weeks, will descend on the Supreme Court building in support of their beliefs; they should walk across the street to the Capitol instead. There are 535 Members of Congress and innumerable legislators on the state and local level whom we have elected to create and enact laws. We should all be discomforted, therefore, by the power that nine individuals, appointed for life and who deliberate in camera, have over us.

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