Magazine article The Human Life Review

Roe V. Wade & Bush V. Gore

Magazine article The Human Life Review

Roe V. Wade & Bush V. Gore

Article excerpt


Senate Democrats have decided to filibuster the president's nomination of Priscilla Owen to a federal court because they believe her to be a conservative "activist," especially on the issue of abortion.

Sounds scary, but have you seen the judicial mainstream lately? Sen. Dianne Feinstein (D., Calif.) has; here's what she says about its importance: "President Bush did not have a large mandate. There is no mandate, in my view, to skew the courts to the right. And so I think you're going to see a judiciary Committee that's really going to be looking for mainstream judges . . . There are points that many of us feel passionately about, one of them being Roe v. Wade."

One can hear in these words a muted echo of Yale professor Bruce Ackerman's remarkable suggestion that the Senate should refuse to confirm anyone nominated to the Supreme Court by President Bush. Why? Because he was illegitimately installed in office by a conspiracy of right-wing justices in Bush v. Gore, the decision that stopped the controversial Florida recount.

There is a real connection between Roe v. Wade and Bush v. Gore. It's common knowledge that abortion politics has played a huge role in judicial-selection battles for many years. Justice Byron White (appointed by President Kennedy) could not be nominated by a Democrat today-he called Roe an improvident and extravagant exercise of raw judicial power. What is less well-known is that much of the academic legal establishment is making a determined effort to discredit Bush v. Gore, and to vilify the five justices who joined the majority opinion. The demand for blind obeisance to Roe and the assault on Bush are both are part of an Orwellian project: To recast judicial fidelity to the law as "right-wing politics," while also redefining extreme forms of judicial activism as "the mainstream."

The stakes in the battle are high, and go beyond the fate of any one nominee. They even go beyond the issue of abortion. The real question is whether we are to get judges committed to applying the law, or judges who treat the law as a game in which the winner gets his policy views enacted as judicial decrees. If the Democrats' filibuster strategy succeeds, judicially created abortion rights will certainly be safe for the moment, but no rights-and no laws-will long be secure from cynical judicial manipulation.

Bush v. Gore provides an illustration. The majority opinion applied well-settled precedents from the Warren Court in a perfectly straightforward fashion, and none of those dissenting could explain why those precedents were inapplicable. …

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