Today’s Supreme Court decision today, Gonzales v. Carhart, emphasizes two things of political importance. First, and this was echoed in John McCain’s statement about the decision, is the importance of having the right judges on the Court. There is little doubt that the federal law in question would have been decided differently had Justice O’Connor still been on the Court. The additions of Justices Roberts and Alito were pivotal in, as Mitt stated today, “upholding a ban on a practice that offends basic human decency.” For GOP contenders, the easy conclusion is the need to appoint “strict constructionist” judges.
Is that the only conclusion? No. This case stemmed from Congress’ and the President’s pro-active decision to test previous abortion decisions through passing legislation, specifically the Partial-Birth Abortion Ban Act of 2003. Conservative legislators partnered with a conservative Executive to challenge the prevailing legal atmosphere through reasonable restrictions on abortion. Thus, the change brought about today was not purely a judicial phenomenon. The President had an important role in signing legislation that furthered his view on abortion. Had the President not been willing to sign such a bill, the current case would not have been brought, and thus the successful change in abortion law would not have occurred. Therefore, appointing “strict constructionist” judges is hardly sufficient for a Presidential candidate. A President who simply deferred to the judiciary would abdicate a pivotal role in bringing about appropriate changes in the law.
This is one reason why Romney’s statement below is so important.
I might suggest another reason why we continue to need leadership on this issue. I had previously remarked here that the decision, albeit a step forward, is a minor one.
While this decision seems largely the result of replacing Justice O'Connor with Justice Alito (she voted the other way in Carhart I), there is substantial evidence it isn't part of a larger landslide in the direction of life.
Neither of Bush 43's appointments joined the concurrence of Thomas and Scalia that, while supporting the majority opinion's result, maintained that the court's jurisprudence in Planned Parenthood v. Casey was flawed. In fact, the decision in Carhart II, affirms the central tenets laid out in Planned Parenthood v. Casey and relies on that reasoning.
While Justice Kennedy would probably maintain that the new decision applies the Casey decision in the way that it was intended. I find the fact that he voted for Casey troubling.
Which basically means, you have two people for supporting over turning Roe v. Wade (Thomas and Scalia), two people currently upholding Roe v. Wade but otherwise unknown (Roberts and Alito), and one member of the current majority who we know upholds Roe v. Wade (Kennedy).
Where does that put people like me who believe that Roe v. Wade has nothing to do with the Constitution and that states should be allowed to enact reasonable regulations of abortion?
We need a President like Mitt Romney who is on record as supporting that goal and who wants to protect life and appoint judges who will follow the Constitution and not the meanderings of misguided Justices.
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