Why Do I Oppose Thee?
is one of the defining fault lines of American political life.
Recently, gay rights and evolution have given it a run for
its money in short little bursts, but in the end it’s abortion
that splits the country more evenly, creates strange bedfellows
in each direction, and calls up deep emotional passions on
a perpetual basis.
Right now it is dominating the news coverage and activism
and public perception of the Supreme Court confirmation hearings
for Judge Samuel Alito. “Senators Unable to Draw Out Alito’s
Views on Abortion” reads a representative Washington Post
headline. Online polls ask if Alito’s 1985 memo in which he
attacks the validity of Roe v. Wade should be the deciding
factor in his confirmation. Noting the memo, and his defense
of a Pennsylvania husband-notification law later ruled unconstitutional
by the Supreme Court, Planned Parenthood is leading the charge
against his confirmation with slogans like “Oppose Alito/Save
On the other side, the newly created People for the Alito
Way has peppered its rallies with speakers who regret having
had abortions. (“Planned Parenthood cut and run” describes
one participant in a PAW rally, a sure sign that the group’s
own PR is quite suspect. Groups that have stared down blockades
of abortion clinics are not afraid of a well-attended rally.
But I digress.)
I would never say that I think a woman’s right to choose is
not an important issue, or is not an important issue in this
confirmation hearing. I shiver at the thought of having children
in an era that has returned to back-alley abortions. Everyone
who feels similarly might want to consider taking a long hard
look at Alito’s record and giving their senators an earful
(this week) about what they find there.
But should that be what this comes down to? I mean, haven’t
many of us been fretting over the past several years about
the denigration of the Constitution as a whole, the vast abuse
of presidential powers, the erosion of civil liberties, the
distortion of our laws to serve short-term and fear-based
agendas? If the whole Constitution is basically scrapped,
will it matter if the latest justice thought it contained
a right to privacy and if that right to privacy protected
Even a quick perusal of the confirmation hearings’ early transcripts
and other reporting reveals a whole pile of reasons to take
a close look at Alito. In one disturbing example, Sen. Edward
Kennedy reported that his review of Alito’s rulings showed
Alito voting overwhelmingly on the side of large institutions
and governments and against individuals, whether it be on
cases of workplace discrimination or abuse of government power.
Alito, as a lawyer, represented the government, remember.
This hits directly on some of the most fundamental questions
that Alito, if confirmed, would be facing.
Yes, a judge should be applying the law, like an umpire, not
exercising his or her preferences. But when an umpire is calling
several times more balls than strikes on the same pitchers
as any other ump, or seems to have a track record of distinctly
favoring certain teams over a long period of time, it is worthwhile
to question that umpire’s worthiness for that role.
I don’t care what Samuel Alito’s personal views on abortion,
race, war, or privacy are. It is true that those should not
enter the realm of his decisions, and many justices have shown
themselves able to do the hard work of applying the law even
if they have a distaste for the results that produces.
However, personal views on issues and personal views on the
law are different things. If the law and its intent were absolutely
straightforward with no ambiguities, no unclear implications
in modern situations that were unanticipated by its founders,
no differing interpretations in the light of different value
sets, then we wouldn’t need a Supreme Court. We wouldn’t have
had Plessy v. Ferguson and then overturned it with
Brown v. Board of Education. We wouldn’t have dissenting
So yes, an indication of this nominee’s values, this nominee’s
basic interpretations of the Constitution, are absolutely
fair game. We need to know, for example, is equal justice
under the law his guiding value? Or is preservation of order
or historical community moral standards? Attempts to discuss
these things should not be silenced with protestations about
how judges are not politicians. It’s true, they are not. But
neither are they automatons.
And so, people concerned about the rule of law, not to mention
the media, would do well to not leave Planned Parenthood swinging
in the breeze as the lone voice of opposition, making Alito’s
opponents seem doggedly single-issue. In fact, civil-rights
groups like the NAACP, a host of environmental groups, labor
unions and gay rights groups have all come out against Alito,
questioning his inclination to protect the American citizenry
on a basic level. Planned Parenthood deserves kudos for its
work, but these other groups should be given equal air time.
Even more importantly in a world where many people expect
the above coalition to agree, now what we need are the libertarians
and the property rights folks, the good Republicans who were
aghast to learn of domestic spying, and the patriots and the
veterans who fought for an America that would never descend
to torture. You may still be in a bit of shock, be reeling
from the accumulated betrayals, but this confirmation could
be complete by next Friday (Jan. 20). It is a short time frame
in which a decision that will affect a generation or more
will be made.
Let’s show the world, and our own leaders, that we do think
about things other than abortion.