Wednesday, November 02, 2005
"The mainstream"
Marshall at Confirm Them does a wonderful job blowing up the silly argument that Alito is somehow "out of the mainstream." He quotes a Karlyn Bowman atrticle in Roll Call:
Marshall's (correct) analysis:
And our own GipperClone is right on the money in the comments section below:
This is exactly right. I have no problem admitting that my absolute opposition to abortion is a minority opinion (though a substantial one). But my - or, more importantly, Alito's - personal opinion on the matter is not relevant. What is at issue is whether or not the Supreme Court's prohibition on state interference on abortion is in accord with the text and meaning of the Constitution. It is not, and even many pro-choicers would acknowledge that.
You know it's funny. I had a discussion with a left-wing friend of mine who agreed that Justices should not legislate from the bench. She proceeded to argue that of course the Court should prevent the states from deciding on abortion because the issue was too important, and the right fundamental. She saw no irony in these comments.
In 1992, when Gallup asked people whether they favored or opposed a law requiring that the husband of a married woman be notified if she decides to have an abortion, 73 percent said they were in favor. In 1996, 70 percent were in favor, and in 2003, 72 percent were. In each survey, about a quarter were opposed.
Marshall's (correct) analysis:
Now, I am NOT suggesting that Judge Alito’s legal decision in Casey reflects his personal views. Indeed, I am very sure that the judge would never allow his personal views to interfere with his legal decision-making.
But on the question of whether upholding spousal notification was in or out of the mainstream, it’s just impossible to argue that a view shared by 70+ percent of Americans is outside of the mainstream.
And our own GipperClone is right on the money in the comments section below:
whether something is constitutional and whether something "represents the views of most Americans" are two different things, and the latter should have no bearing whatsoever on interpreting the Constitution.
This is exactly right. I have no problem admitting that my absolute opposition to abortion is a minority opinion (though a substantial one). But my - or, more importantly, Alito's - personal opinion on the matter is not relevant. What is at issue is whether or not the Supreme Court's prohibition on state interference on abortion is in accord with the text and meaning of the Constitution. It is not, and even many pro-choicers would acknowledge that.
You know it's funny. I had a discussion with a left-wing friend of mine who agreed that Justices should not legislate from the bench. She proceeded to argue that of course the Court should prevent the states from deciding on abortion because the issue was too important, and the right fundamental. She saw no irony in these comments.
# posted by Paul Zummo : 2:52 PM
