Please look over these collection of quotations from big name supporters of
abortion rights who admit that the Roe v. Wade decision is seriously flawed!
Art
-----Original Message-----
From: Manuel Miranda [mailto:mmiranda at att.net]
Sent: Wednesday, November 16, 2005 7:17 AM
To: Undisclosed-Recipient:;
Subject: Third Branch News 11/16 Look who's talking
1) Some good work from reporter Tim Carney. (In case you do not recognize
Ben Wittes' name, he is the editorial writer on judicial issues for the
Washington Post.)
2) Meyerson of the Post thinks a gun has been fired. Let the debate begin.
3) Clips.
4) The NYTimes defines bald assertion.
_______________________________________
http://www.timothypcarney.com/?page_id=176
Pro-choice Criticisms of Roe
This is a work in progress. One key source of this info was Ed Whelan’s
testimony before the Senate Judiciary Committee’s Subcommittee on the
Constitution. A John Cornyn press release was also a helpful resource.
Because legal arguments are often very nuanced, I am working to get links to
the full texts of all the quoted materials so that readers can view these
quotations in their full context. With some articles, this process is more
difficult than with others.
Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.
“One of the most curious things about Roe is that, behind its own verbal
smokescreen, the substantive judgment on which it rests is nowhere to be
found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due
Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).
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Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court
“Roe, I believe, would have been more acceptable as a judicial decision if
it had not gone beyond a ruling on the extreme statute before the court.
Heavy-handed judicial intervention was difficult to justify and appears to
have provoked, not resolved, conflict.”
North Carolina Law Review, 1985
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Edward Lazarus — Former clerk to Harry Blackmun.
“As a matter of constitutional interpretation and judicial method, Roe
borders on the indefensible. I say this as someone utterly committed to the
right to choose, as someone who believes such a right has grounding
elsewhere in the Constitution instead of where Roe placed it, and as someone
who loved Roe’s author like a grandfather.”
.
“What, exactly, is the problem with Roe? The problem, I believe, is that it
has little connection to the Constitutional right it purportedly
interpreted. A constitutional right to privacy broad enough to include
abortion has no meaningful foundation in constitutional text, history, or
precedent - at least, it does not if those sources are fairly described and
reasonably faithfully followed.”
“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings
on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal
Commentary, Oct. 3, 2002
“[A]s a matter of constitutional interpretation, even most liberal
jurisprudes — if you administer truth serum — will tell you it is basically
indefensible.”
“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.
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William Saletan — Slate columnist who left the GOP 2004 because it was too
pro-life.
“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe:
invention, overreach, arbitrariness, textual indifference.”
“Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.
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John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School
Roe “is not constitutional law and gives almost no sense of an obligation to
try to be.”
.
“What is frightening about Roe is that this super-protected right is not
inferable from the language of the Constitution, the framers’ thinking
respecting the specific problem in issue, any general value derivable from
the provisions they included, or the nation’s governmental structure. Nor is
it explainable in terms of the unusual political impotence of the group
judicially protected vis-à-vis the interest that legislatively prevailed
over it.
At times the inferences the Court has drawn from the values the
Constitution marks for special protection have been controversial, even
shaky, but never before has its sense of an obligation to draw one been so
obviously lacking.”
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal,
920, 935-937 (1973).
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Benjamin Wittes — Washington Post
Roe “is a lousy opinion that disenfranchised millions of conservatives on an
issue about which they care deeply.”
“Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.
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Richard Cohen — Washington Post
“[T]he very basis of the Roe v. Wade decision — the one that grounds
abortion rights in the Constitution — strikes many people now as faintly
ridiculous. Whatever abortion may be, it cannot simply be a matter of
privacy.”
.
“As a layman, it’s hard for me to raise profound constitutional objections
to the decision. But it is not hard to say it confounds our common-sense
understanding of what privacy is.
If a Supreme Court ruling is going to affect so many people then it ought to
rest on perfectly clear logic and up-to-date science. Roe , with its
reliance on trimesters and viability, has a musty feel to it, and its
argument about privacy raises more questions than it answers.”
.
Roe “is a Supreme Court decision whose reasoning has not held up. It seems
more fiat than argument.”
.
“Still, a bad decision is a bad decision. If the best we can say for it is
that the end justifies the means, then we have not only lost the argument —
but a bit of our soul as well.”
“Support Choice, Not Roe” Washington Post, October 19, 2005.
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Alan Dershowitz — Harvard Law School
Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency
of judicial activism in areas more appropriately left to the political
processes
. Judges have no special competence, qualifications, or mandate to
decide between equally compelling moral claims (as in the abortion
controversy)
. [C]lear governing constitutional principles
are not present
in either case.”
Supreme Injustice: How the High Court Hijacked Election 2000 (New York:
Oxford) 2001, p. 194.
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Cass Sunstein — University of Chicago and a Democratic adviser on judicial
nominations
“In the Court’s first confrontation with the abortion issue, it laid down a
set of rules for legislatures to follow. The Court decided too many issues
too quickly. The Court should have allowed the democratic processes of the
states to adapt and to generate sensible solutions that might not occur to a
set of judges.”
“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110
Harvard Law Review 6, 20 (1996).
“What I think is that it just doesn’t have the stable status of Brown or
Miranda because it’s been under internal and external assault pretty much
from the beginning
. As a constitutional matter, I think Roe was way
overreached. I wouldn’t vote to overturn it myself, but that’s because I
think it’s good to preserve precedent in general, and the country has
sufficiently relied on it that it should not be overruled.”
“Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15,
2005
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Jeffrey Rosen — Legal Affairs Editor, The New Republic
“In short, 30 years later, it seems increasingly clear that this pro-choice
magazine was correct in 1973 when it criticized Roe on constitutional
grounds. Its overturning would be the best thing that could happen to the
federal judiciary, the pro-choice movement, and the moderate majority of the
American people.
.
“Thirty years after Roe, the finest constitutional minds in the country
still have not been able to produce a constitutional justification for
striking down restrictions on early-term abortions that is substantially
more convincing than Justice Harry Blackmun’s famously artless opinion
itself. As a result, the pro-choice majority asks nominees to swear
allegiance to the decision without being able to identify an intelligible
principle to support it.”
“Worst Choice” The New Republic February 24, 2003
_____________________________
Washington Post
Alito's Smoking Gun
By Harold Meyerson
Wednesday, November 16, 2005; A19
Samuel Alito could not have put it more plainly. "The Constitution," he
wrote in a 1985 job application he posted to the Reagan administration's
attorney general, Ed Meese, "does not protect a right to an abortion."
The folks charged with getting Alito confirmed as Sandra Day O'Connor's
successor are insisting that the judge's declaration is not a smoking gun.
Alito's subsequent record on the federal appellate bench, said Republican
Sen. John Cornyn of Texas, "shows he has indeed put his personal views on
abortion aside." And in the Washington Times story that revealed the
existence of the application, an unnamed Republican official insisted, "the
issue is not Judge Alito's political views during the Reagan
administration." The issue was the hundreds of opinions Alito had authored
in the years since, in "none of which is it evident what his political
philosophy is."
Now, maybe I'm cockeyed here, but I don't read Alito's abortion assertion as
either personal or political. A personal view would say, "I'm opposed to
abortion." A political declaration would say, "Abortion is a bad public
policy." But those aren't the sentiments that Alito voiced. What he said, if
you'll pardon the strict construction here, is that there is no
constitutional right to an abortion. Which is a viewpoint, if agreed to by
five Supreme Court justices, that can change the law, and social fabric, of
the land.
Alito's advocates argue that he never once called for overturning Roe v.
Wade during his 15 years on the appellate bench. But appellate judges
interpret the law within the framework that the Supreme Court lays out.
Supreme Court justices can change that framework when they see fit -- and
they do. Those are the Supreme Court decisions that make the history books,
and there are a number of them. Deference to precedents may be a pillar of
the law, but -- and on this, conservatives and liberals agree -- it is
clearly less of one for Supreme Court justices than for appellate and trial
judges.
Alito's champions would have us believe, however, that he will defer even to
precedents that he regards as unconstitutional -- despite the fact that the
job of a justice is precisely to determine what is and isn't constitutional.
That's asking us to believe a lot.
Clearly, the senators charged with questioning Alito will ask him if he
still believes what he wrote 20 years ago. In this instance, since his
assertion to Meese was so unequivocal, not answering has to be taken as a de
facto yes. He could argue, I suppose, that Roe is a more settled point of
law now, 32 years after the decision, than it was in 1985. But do time and
repeated citation really validate a ruling that Alito viewed -- and unless
he tells us otherwise, still views -- as unconstitutional to begin with? Do
Alito's constitutional views count for nothing? Did George W. Bush appoint
him simply to leave everything as is?
Alito's antipathy toward Roe wasn't the only high point of his '85 job
application. He also noted that he disagreed with the Warren Court's
decisions "in the areas of criminal procedure, the Establishment Clause and
reapportionment." Reapportionment? By far the most notable reapportionment
decision of the Warren Court was its famous one-man, one-vote ruling, which
required state legislatures to create districts of equal population. By 1985
this decision -- unlike Roe -- had won universal acceptance. What on earth
did Alito disagree with here? The disenfranchisement of pasture and cow?
Alito's memo to Meese was, to be sure, a job application, and the assertions
people make when applying for jobs tend to the hyperbolic. But Sam Alito
comes off as one of nature's straight shooters, and I see no reason to take
his declarations as anything other than accurate representations of his
beliefs. Which means, unless he's reversed his thinking or unless deference
to precedent trumps his deepest beliefs on constitutionality, that Justice
Samuel Alito would, given the opportunity, abolish a woman's federal right
to reproductive choice. It's not personal for him; it's constitutional. But
it's plenty personal for the American people.
___________________________________________
National News
1. Editorial says Alito job application shows he is worthy of
rejection – he is extreme, doesn’t respect precedent, and is an ideologue
(Editorial, NYT: http://www.nytimes.com/2005/11/16/opinion/16wed1.html)
Of Note
White House
a.. Bowman (Roll Call) notes polls showing majority don’t know who Alito
is, 19% support, 12% oppose
(http://www.rollcall.com/issues/51_53/bowman/11264-1.html)
Senate
a.. Hurt (W Times) covers Senate and Alito reaction to 1985 job
application (http://washingtontimes.com/national/20051116-121615-8919r.htm)
Judge Sam Alito, Jr.
a.. Greenhouse (NYT) profiles Alito’s method of analysis through 2003
death penalty case
(http://www.nytimes.com/2005/11/16/politics/politicsspecial1/16death.html?pa
gewanted=all)
b.. Bravin (WSJ) profiles Alito’s decision making, saying he favors the
scalpel over the sledgehammer and relies on gradual change and less
combative style
(http://online.wsj.com/article/SB113210868440198544.html?mod=todays_us_page_
one)
Issues
a.. Stolberg and Kirkpatrick (NYT), Babington and Russakoff (W Post),
Serrano and Savage (LAT), Holland (AP) cover Alito downplaying remarks on
abortion and quotas from Reagan era job application
(http://www.nytimes.com/2005/11/16/politics/politicsspecial1/16confirm.html;
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/15/AR2005111500
085_pf.html;
http://www.latimes.com/news/nationworld/nation/la-na-alito16nov16,1,4168153.
story?coll=la-headlines-nation;
http://news.yahoo.com/s/ap/20051116/ap_on_go_su_co/alito;_ylt=AmUy9Nyl3CyPZc
Dfulb7_XNMEP0E;_ylu=X3oDMTBjMHVqMTQ4BHNlYwN5bnN1YmNhdA--)
b.. Savage (NYT) wonders why Democrats don’t propose a privacy amendment
to Constitution, comparing it to the anti-gay marriage amendment
(http://www.nytimes.com/2005/11/16/opinion/16savage.html)
a.. Meyerson (W Post) says Alito memo shows he would overturn Roe, unless
he now disagrees or believes it is trumped by precedent
(http://www.washingtonpost.com/wp-dyn/content/article/2005/11/15/AR200511150
1309.html)
b.. Editorial (LAT) says there is room for Alito to wiggle out of memo,
but it should be starting point for honest debate – unlike past hearings on
abortion and affirmative action
(http://www.latimes.com/news/opinion/editorials/la-ed-alito16nov16,0,1403056
.story?coll=la-news-comment-editorials)
1
Editorial says Alito job application shows he is worthy of rejection – he is
extreme, doesn’t respect precedent, and is an ideologue
NYT vs ALITO
NYT
Ignore The Man Behind That Memo
Editorial
http://www.nytimes.com/2005/11/16/opinion/16wed1.html
Judge Samuel Alito Jr.'s insistence that the Constitution does not protect
abortion rights is not the only alarming aspect of a newly released memo he
wrote in 1985. That statement strongly suggests that Judge Alito is far
outside the legal mainstream and that senators should question him closely
about it. They should be prepared to reject his nomination to the Supreme
Court if he cannot put to rest the serious concerns that the memo, part of a
job application, raises about his worthiness to join the court.
When Judge Alito applied for a job with the Justice Department under
President Ronald Reagan, he submitted a Personal Qualifications Statement
that outlined his approach to the law. That statement raises three major
concerns:
First, he has extreme views on the law. Judge Alito said he was particularly
proud of his work on cases that tried to establish that "the Constitution
does not protect a right to an abortion." He did not merely oppose Roe v.
Wade in the abstract - he worked to reverse it. He also noted his
"disagreement with Warren Court decisions" in many important areas,
including reapportionment. The reapportionment cases established the
one-person-one-vote doctrine, which requires that Congressional and
legislative districts include roughly equal numbers of people. They played a
key role in making American democracy truly representative, and are almost
uniformly respected by lawyers and scholars.
Second, Judge Alito does not respect precedent. Judicial nominees who appear
extreme often claim that because they respect precedent, they will vote to
reaffirm decisions they disagree with. When Judge Clarence Thomas was
nominated for the Supreme Court, he told the Senate about his deep respect
for precedent - and then immediately began voting to overturn important
precedents when he joined the court. The Senate has specific reason to be
skeptical about Judge Alito. Not only did he work to overturn Roe v. Wade,
but he also said he had been inspired to go to law school by his opposition
to Warren Court precedents - presumably by a desire to see them overturned.
Third, he is an ideologue. The White House has tried to present Judge Alito
as an impartial judge without strong political views. But he said just the
opposite in the 1985 statement. "I am and always have been a conservative,"
he wrote. He called himself a "life-long registered Republican" who
contributed to "Republican candidates and conservative causes" including the
National Conservative Political Action Committee, the super-PAC of the
Reagan era. He strongly suggested that he would have been active in
Republican politics if the law had not prohibited him, as a federal
employee, from doing that.
Judge Alito is already trying to distance himself from the memo. He cannot
say it was merely a lawyer's representation of an employer's views because
it was undeniably a statement of his personal beliefs. He cannot call it an
excess of youth because he was 35 when he wrote it. According to Senator
Dianne Feinstein, the California Democrat, Judge Alito told her yesterday
that when he had written it he had merely been "an advocate seeking a job."
This is not very credible because the statement is entirely consistent with
his full career. On the bench, Judge Alito has voted to uphold extreme
limits on abortion and on other important rights, like freedom from
unreasonable searches and seizures.
Equally alarming is the notion that he fudged the truth to tell a potential
employer what it wanted to hear. Senators should certainly keep this in mind
when they try to decide whether to believe how he describes his views at his
confirmation hearing.
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