Thursday, January 12, 2006

A 'sick sideshow,' stare decisis revisited

Ann Coulter:
For fun, we ought to replace all the Republicans on the Senate Judiciary Committee with "American Idol" contestants (assuming they wouldn't object to serving on a committee that includes a degenerate like Teddy Kennedy). Democrats would still not be able to persuade a single normal American that Sam Alito is "out of the mainstream."

Indeed, it's gone very well for Judge Samuel Alito. Of course, the baseless attacks of certain senators have gone way too far, clearly exemplifying the sorry state of today's Democratic Party. And while pathetic, the Dems' shameful behavior is very hurtful to some (Alito's wife, for instance, broke into tears yesterday) and offensive to many (apparently everyone who knows Judge Alito). Paul Zummo at Confirm Them says that the hearings have "become a sick sideshow all for the glorification of people who aren’t worthy to lick Samuel Alito’s shoes." Strong, but probably true.

Meanwhile, Sen. Brownback gave an impressive presentation yesterday on why Roe v. Wade should be overturned.

Plus, Terence Jeffrey wrote an excellent column yesterday on stare decisis, which I spent a lot of time on in a recent post. " How many times does someone have to repeat a falsehood before it becomes true?" Jeffrey asks. Of course, a falsehood never becomes true. He continues:
Now, the confirmation hearings for Associate Justice-nominee Samuel Alito, demonstrate that for Senate Judiciary Chairman Arlen Specter there is a second question that must be considered when it is indeed the Supreme Court that has repeatedly declared a falsehood.

The question is: How many times must a majority of the court repeat the falsehood before it becomes binding on all future justices?

The falsehood repeated by the Supreme Court that Specter would like to preserve is not that lead is gold. It is that the 14th Amendment created a right to kill an unborn child. This so-called “right” was first discovered by seven members of the Supreme Court in the 1973 Roe v. Wade decision. It was immediately exposed as a falsehood by the late William Rehnquist, then an associate justice, who pointed out in a dissent that the abortion-limiting laws of 21 states, including the Texas law specifically addressed in Roe, had been in force before ratification of the 14th Amendment and had remained in force for more than a hundred years after ratification.

The main question, it seems, is whether "stability" is more important than being constitutional. The majority in Casey said just that:
Specter quoted a remarkably cynical statement Justices O’Connor, Kennedy and Souter made in Casey. “After nearly 20 years of litigation in Roe’s wake,” they wrote, “we are satisfied that the immediate question is not the soundness of Roe’s resolution but the precedential force that must be accorded its holding.”

In his hearings, Judge Alito has, disturbingly, spoken of something similar - a two-step process of first looking at stare decisis and the value of precedent, and then, if necessary, reevaluating the actual issue.

But a judge's ideal method seems obvious to me: If a past decision is clearly incorrect (e.g., Roe), one should vote to overturn it. If it is not clear, one should - according to stare decisis - let the original ruling stand. But the Constitution always comes first. After all, that's the document a justice swears to uphold.

Update: Good commentary on the hearings:

Liberal Former Alito Clerk: Don't "F" Alito - "By opposing Alito, my fellow liberals and I run the real danger of shooting ourselves in our own left foot."
Dems Sinking to New Low - "In the Alito confirmation hearings, Senate Democrats on the Judiciary Committee have forsaken facts and truth in the name of political victory."
Who has an agenda?
Shooting Blanks at Alito
In the Alito confirmation, it all comes down to ideology
Judging the judge's judges

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