Judging the judge

Commentary by American Life League president Judie Brown

Sometimes pro-lifers rival the pro-abortion crowd in their hysterical hyperbole. Such is the case regarding President Bush's Supreme Court nominee, Judge Samuel Alito. While I am not attempting to defend the man or use a crystal ball to read his mind and determine what he might rule in the future, I do believe it is prudent to examine precisely what he did do when it came to cases involving abortion.

This is necessary because many of my frenzied colleagues are positive that the judge is pro-abortion. How else, they ask, could Judge Alito "believe" that the New Jersey partial-birth abortion ban was unconstitutional at the same time that he believed that abortion was unconstitutional? My friends have read the news reports detailing how Alito ruled. They have taken at face value media characterizations that three of his four rulings came down on the pro-abortion side. So, they assume that means that Alito is pro-abortion.

Well, it's not quite that easy, nor should it be that political. Alito is not running for political office; he is a judge whose job is supposed to consist of interpreting the law, referring to previous Supreme Court decisions and then deciding a particular case based on what his examination reveals.

Let's take a look at his 2000 decision in the New Jersey partial birth abortion law, from which we can learn a great deal. The New Jersey law came before the judge after the U.S. Supreme Court, on June 28, 2000, had ruled in Stenberg v. Carhart that the Nebraska partial birth abortion law was vague. The court also ruled in that case that because the Nebraska law did not contain a health of the mother exception, it created an undue burden on women.

On its face, this Supreme Court decision was stunningly pro-death. Nobody is going to argue on that point at all. But the fact is the court had ruled on this law; this decision had to be taken into account by Judge Alito and his fellow appellate court judges when evaluating the New Jersey law. Their decision was rendered on August 15, 2000. Upon examination, Judge Alito found the New Jersey law unconstitutional.

Does that necessarily mean that Judge Alito found abortion constitutional? Frankly, I doubt it. And if it does, then I am pro-abortion too! I see the so-called partial birth abortion ban laws as vague, contradictory and wholly inadequate. There isn't one such proposed law that is really a ban on anything. They all contain a "life of the mother" exception. There isn't one such proposed law that bans all late term abortion procedures, but rather they are unanimous in singling out one procedure, known medically as the D and X, and then writing into the law a reason to go ahead and kill the baby anyway if the "life of the mother" is threatened.

Well give me a break! Such a law denies the personhood of some babies and does nothing but undermine the cause of restoring personhood. And there you have it.

I am not a nominee to the U.S. Supreme Court, but I find the law immoral.

On the other hand, Alito is a judge and he found the law, consistent with previous court rulings, unconstitutional. He is a judge; he examined the facts the way a judge should, and he rendered a decision. That is all he did. My statement was a personal position based on moral principle. His decision was not. His decision was based on a careful interpretation of the law itself and court precedents.

As pro-lifers we insist that judges stop making up the law as they go along, and simply interpret the Constitution with care. That is what Judge Alito was, in my view, attempting to do.

And that is why, in his 1991 dissenting opinion, regarding the Planned Parenthood v. Casey case, he defended the right of fathers to be consulted before mothers submit to aborting their child. There is nothing in the Constitution that gives a mother a right to kill her baby, but there is recognition of parental authority based on precedent, and so the judge had every reason, as a strict interpreter of the law and judicial precedent, to rule in defense of father's rights.

Judge Samuel Alito also stated in 1997, while nearly concurring with the Third Circuit holding in Alexander v. Whitman, "I think that the court's suggestion that there could be 'human beings' who are not 'constitutional persons' is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a 'person' within the meaning of the 14th Amendment. However, the reference to constitutional non-persons, taken out of context, is capable of misuse."

Here we have a judge who has examined a case, ruled almost with his fellow judges against the pro-life interest, but made the most salient point I have read in years. Did he have to suggest that viewing some human beings as non-persons was unfortunate? No, he did not. He made the statement precisely because he is aware of what the framers of the Constitution intended.

If that is so, Judge Alito is sane, he is principled, and he is a man who will truly judge a case on its constitutional merits rather than political mumbo-jumbo, a condition which both pro-lifers and pro-aborts suffer from now and then.

I, for one, will wait and see what the judge does once he is seated on the Supreme Court. In the meantime, I do encourage my fellow pro-lifers to assess what it is they want the Supreme Court to do in the coming years.

If we do not want a court to do as the Roe v. Wade/Doe v. Bolton court did by usurping the lawmaking power of 50 states while simultaneously assigning an entire class of human beings to non-personhood, then we should be hoping and praying for wise judges, not Republican mouthpieces. We should be anticipating a future when Supreme Court judges will revisit the Constitution and the Bill of Rights, confident that the words contained therein are permanent guidelines rather than seasonal suggestions.

Will Judge Alito see it that way? Time will tell. So let's put away our harpoons and our bullhorns, and get down on our knees.

Release issued: 9 Nov 05