Tuesday, November 01, 2005

Alito Leans Right Where O'Connor Swung Left

From a story in the Washington Post, it seems that both sides will take off the gloves for this one.
O'Connor "has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom," said Steven R. Shapiro, national legal director of the American Civil Liberties Union. "Judge Alito's nomination . . . therefore calls into question the court's delicate balance that Justice O'Connor has helped to shape and preserve."

"With this nomination, Bush is saying 'Bring it on!' " said John C. Yoo, a former Bush administration Justice Department official. "There is no effort to evade a clash with Senate Democrats. That's why conservatives are so happy."
Although the ACLU calls O'Connor's presence a "delicate balance", I (as no legal scholar at all) have seen instead a dreadful inconsistency in some of her rulings. Apparently Judge Alito felt the same in 1991 when interpreting O'Connor's "undue burden" qualification.
In the 1991 case, Alito joined two other judges in upholding various abortion regulations the Pennsylvania legislature had adopted. But he was the only member of the panel who thought the law's requirement that married women must notify their husbands before having an abortion was not an "undue burden" as O'Connor had defined the concept.

In an opinion that never called for the overruling of Roe or even spoke negatively of it, Alito said that the spousal-notification law would be all right -- in part because it made an exception for cases of spousal abuse.

However, Alito had guessed wrong about O'Connor's meaning. When the case came to the Supreme Court in 1992, she joined a five-justice majority that reaffirmed Roe and ruled that the spousal notification law constituted an undue burden.
It will be interestying to see the Democrats in the Senate work on this one. They will each proclaim the right to abortion will be forever destroyed with an Alito confirmation. Yet they and everyone else on both sides of the "hot button" issue knows that the truth is simply not in that statement. The question of abortion, if Roe v Wade is overturned, will revert to State Legislatures. Some will outlaw the procedure, only to be overturned by their own Supreme Court. Others will liberalize even further, maybe to be overturned. Others still will maintain pretty much the status quo.

Relax Schumer, Kennedy, et al, there is no Boogy Man here.

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