Liberals’ response to the nomination of Judge Samuel Alito Jr., to replace retiring Supreme Court Justice Sandra Day O’Connor is as hysterical as it was predictable. Senate Minority Leader Harry Reid, D.-Nev., blamed the "radical right wing" for Alito’s selection. Failed Democratic presidential nominee Sen. John Kerry, D.-Mass., echoed the sentiment. "Has the right wing now forced a weakened president to nominate a divisive justice in the mold of Antonin Scalia?" Kerry asked, rhetorically. And it wasn’t just senators, but left leaning interest groups that joined the fray. Ralph Neas of the mis-named People for the American Way warned, "Replacing a mainstream conservative like Justice O’Connor with a far-right activist like Samuel Alito would threaten Americans’ rights and legal protections for decades."
For all the talk of right-wing coups, Alito is no radical but a judicious, thoughtful, and careful jurist with one of the most impressive resumes of any nominee in modern Supreme Court history. He’s been a career lawyer in the Justice Department’s Office of Legal Counsel, a federal prosecutor with a distinguished record of prosecuting organized crime, and an appellate judge for more than 15 years. You couldn’t find a better prepared candidate, unlike President Bush’s previous nominee, Harriet Miers, whose nomination floundered when it became apparent she lacked experience dealing with constitutional issues. So what exactly are Democrats so afraid of?
It boils down to one issue: abortion. Democrats have been worrying for years that Roe v. Wade would be reversed when a Republican took the White House and began appointing justices to the Supreme Court. They warned about it during President Reagan’s and President George H.W. Bush’s terms, inveighing against their nominees to the Supreme Court during Senate hearings. Liberals attacked Sandra Day O’Connor, Anthony Kennedy, David Souter, and Clarence Thomas for their presumed anti-abortion views, but only Justices Thomas and Reagan appointee Scalia have consistently opposed the legal reasoning in Roe v. Wade in their subsequent decisions. Ironically, Scalia faced little criticism when he was named to the court in 1986 and was unanimously confirmed by the Senate — touted at the time for being the first Italian American to be appointed to the high court. O’Connor, Kennedy, and Souter, despite the dire predictions of Democrats, have repeatedly reaffirmed the basic outlines of Roe v. Wade.
No one knows how Alito would vote on any future abortion case — and he’s not likely to tip his hand at confirmation hearings, any more than Chief Justice John Roberts did at his or Clinton-appointed Justice Ruth Bader Ginsburg did at hers, for that matter. But let’s just assume for a moment that Roe v. Wade will be reversed if Alito is confirmed. Would abortion suddenly become illegal in the United States? Would women seeking abortions be forced into back alleys, as the Democrats are fond of asserting? Hardly. A reversal on Roe v. Wade would simply turn the issue of abortion back to the states. At the time Roe v. Wade was decided in 1973, most states were in the process of liberalizing abortion laws. Today, after more than 30 years of virtually unfettered access to abortion, it is unlikely that many states would pass restrictive laws.
Public opinion polls show a substantial majority of Americans would not like to see abortion outlawed altogether, but would favor some restrictions placed on the procedure. For example, about two-thirds of Americans would not allow abortions in the fifth or subsequent months of pregnancy unless the mother’s health or life was in danger. Similar majorities favor parental notification for girls under 18 who seek abortions — a restriction the Supreme Court has countenanced so long as the girl could appeal to a judge who could bypass notification. And Americans overwhelmingly oppose "partial birth abortions," which most often occur late in pregnancy and involve a particularly gruesome procedure to collapse the fetus’ skull before removing the body vaginally.
Democrats’ hysterical predictions notwithstanding, the Supreme Court — even one dominated by anti-Roe justices — cannot outlaw abortion. What a reversal of Roe v. Wade would do would be to return this most divisive and emotional issue to the people to decide through their elected legislatures. That’s no excuse for opposing Samuel Alito.
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