Wednesday, July 20, 2005

Warning: Controversial subject mentioned and soap-box rantings contained below

Ok, this is the only thing I’m going to say on this topic, and I don’t want to start anything, so keep angry pro-abortion or pro-life comments to yourself. Last night Bush announced his nominee for the Supreme Court, and the media has already started in. The USA Today headline reads something like “Bush nominates conservative appeals court judge,” and a smaller headline proclaims that Judge Roberts “argued against Roe.” I swear, it’s like the media purposefully finds the most inflammatory things to say just to see how everyone will react. And he kicks puppies, too! I’m pretty sure that Judge Roberts has done other things in his career other than argue against Roe v. Wade, but apparently the USA Today is happy making this into a one-issue confirmation hearing.

But I don’t want to talk about the media here. Instead, I want to talk about how irrational people seem to get when confirmation time rolls around. First of all, the idea that a judge will always rule based on his moral principles is completely untrue. That’s like saying criminal defense lawyers can only do a good job if they honestly believe their clients are totally innocent. There are, of course, judges who are not so great. But most judges take their jobs very seriously and try very hard to apply the law. Compared to what they could make in private practice, judges don’t make much money, so most of them stick with the job out of dedication and a belief that what they do is important, and they take that role very seriously. And besides, how they apply the law will depend on the facts of the case, so a judge might uphold a law regulating abortion in one instance but vote against it in another. So I’m pretty much against asking judges how they feel about moral issues such as abortion.

And that bring me to my second point. People have tried to get around asking point blank how someone feels about abortion by making Roe v. Wade a euphemism for abortion. “How do you feel about Roe v. Wade?” they ask. “Would you vote to uphold it? Would you vote to overturn it?” The problem is, those types of questions are stupid. I’m not being inelegant here, I’m being honest. Those are stupid questions. Asking someone how she feels about Roe v. Wade is not the same as asking how she feels about abortion, and it shouldn’t be used that way. Personally, I would vote against it in a heartbeat. “Aha!,” you say, “she would overturn Roe! She’s against abortion! Burn her!” Or, possibly, “she’s against abortion! Confirm her!” Either way—not so fast, there.

Here’s the thing: Roe v. Wade was a judicial opinion. A judicial opinion is not the same thing as a moral opinion; one is a personal conviction and the other a judgment as to what the law is. Like all judicial opinions, it was written by human beings, so unsurprisingly, it was flawed. Very, very flawed. It’s a terribly written opinion. I don’t see how any person who has studied law can say otherwise with a straight face. See, normally, on these big issues, the Supremes let the cases bounce around in state courts or federal appeals courts for a while to see what arguments knowledgeable lawyers make and what decisions other knowledgeable judges make. That way, by the time it makes it up to the Supremes, the issue has been pretty well argued on both sides, they can see the flaws in the reasoning of one or both sides, and the Supreme Court can issue an opinion that, if you don’t agree with it, you can at least feel that it’s well-informed opinion and logical. That didn’t happen with Roe. There, they wanted to ok abortion and they wanted to do it soon, and as such, they came up with an opinion that wasn’t well reasoned, wasn’t based on good logic, and doesn’t really make a lot of sense. I don’t care how much you support abortion, surely you can cheer the Court’s conclusion while still admitting that how they got there ain’t so hot.

One more thing: for those of you who don’t know it, although Roe v. Wade hasn’t been overturned, it’s holding has been modified by subsequent decisions, such as Planned Parenthood v. Casey. Sure, Roe is the first Supreme Court case that made abortion legal, but that’s like making an interstate commerce argument and only using Gibbons v. Ogden to explain the current law instead of United States v. Morrison or US v. Lopez. Furthermore, contrary to what some people seem to believe, Roe did not authorize abortion in any and all circumstances, so a person could, for example, vote against partial birth abortion but still vote to uphold Roe v. Wade.

So what’s my point? I have several. One, let’s not throw terms around when we don’t understand what we’re saying. Second, let’s set aside labels and easy answers and actually consider Judge Roberts’ record. If you really want to have an opinion on this one instead of a knee-jerk reaction, try reading opinions that he’s written, on a variety of topics, and get a feel for whether you think he is intelligent, whether he has integrity, whether he will try honestly and faithfully to apply the law, whether he’s consistent, and whether he the best interests of this country at heart. That’s what I’ll be doing, and that’s why I don’t as yet have an opinion on whether he should be confirmed. Don’t ask him where he stands on abortion (or the environment, or gun control, or affirmative action), but instead, if the issue is important to you, consider how he would apply the law in different factual situations. Look at his analysis and reasoning. But for heaven’s sake, don’t ask how he feels about Roe—and get your facts straight!


Jennboree said...

I enjoyed your comments simply because it is a perfect example of how not only the media but citizens of all backrounds should examine everything within our government.

All the facts. Not just the political jargon pushed to the forefront.

JLR said...

Thanks, jenn. That was exactly my point. Personally, I rarely care whether someone agrees with me or not on the issues so long as the other person's opinion is an educated one.

Kim Plaintive said...

Lots of very good points... Sadly, we all know that a thorough and thoughtful evaluation of a nominee's record and thought process does not a confirmation make.

Amstaff Mom said...

Great post JLR. You have been missed. Very in depth writing, and while we could have begun shouting our opinions of abortion and the media from the rooftops, you focused on your topic and made a very valid point. Kudos to you.

Ben said...

Eloquent. Articulate.

I agree with every point.

Hope he gets confirmed... even the media are having a hard time finding fault in him.


Lone Ranger said...

Democrats haven't been in this big a snit since Republicans took away their slaves. Were every member of the Supreme Court a strict constitutionalist, Row v Wade would never have been heard. Instead, it would have been kicked back to the states. In states like California, either the state legislature would have legalized abortion or the citizens would have been allowed to VOTE on the issue. That must be a Democrat's worst nightmare -- actual democracy in action. And if they voted to legalize it, the Supreme Court would not have been able to do anything about it. Why? Because the Constitution does not deal with abortion. Therefore, it is a matter up to the states or the people. The 10th Amendment! Read it! Heed it! Demand it!

JLR said...

Thanks for being supportive, everyone. Again, I would encourage everyone to actually read opinions written by Judge Roberts before deciding one way or another, and let's not make this a one-issue judgment.

To help everybody out with that, I'm posting a list of where you can find his published opinions at impatient citizen.

JLR said...

Ok that link doesn't seem to be working. The blog is

Katie said...

Three words, You Go Girl.

On a serious note, I wish that all voting Americans (those that don't vote must have thier mouths taped shut and cannot comment on anything political because they do not participate in the process that is pivotal to a representative democracy) thought and reasoned at you do. The problem is they don't. They can't think father than the 30 second sound bite on the evening news and that is what they make all decisions on. I ditto your suggestion to investigate a nominee, this is what we should do with all elected officials. The media is neither informational or unbiased. The nature of news today prevents it from being so, they want the people to watch, the people want sensationalism and drama, so the media, who is there to inform the people about information they cannot obtain in a daily conversation with their neighbor, perpetuates the problem and we have misinformed voters. Ok I will go to my own blog for my soap box but I agree wholeheartly with your statments.

JLR said...

Thanks, katie. I wish more voters were like *you*!