Not content to go gently into that good night (instead running for President again), Sen. John Kerry (D.-Mass.) wants to filibuster Judge Samuel Alito’s nomination to the U.S. Supreme Court. This quest seems likely to fail, but the desperation of Alito’s Senate opponents highlights just how politicized the Supreme Court has become. Leftists’ passion is alight even though Roe v. Wade will be safe regardless, since five remaining members of the court have clearly supported Roe in the past.
However, the replacement of Justice Sandra Day O’Connor with Alito will almost certainly yield some results for the pro-life cause. As I have written before, Alito is a solidly conservative jurist who believes in interpreting the Constitution and the laws rather than making them up. We can be as certain as reasonably possible, short of an outright promise, that he will vote to overturn Roe—and had he promised to do so, he couldn’t make such a vote since he would never be confirmed by the Senate.
Alito’s hearings should have heartened pro-lifers. He refused to call Roe v. Wade “settled law,” as now-Chief Justice John Roberts had done during his own confirmation hearings, and consistently emphasized fidelity to the text in constitutional interpretation. The Senate will vote to end debate on Alito’s nomination late Monday afternoon—this is when Kerry’s effort will or will not bear fruit—and then vote on Alito’s nomination itself either that evening or the next day. Those who live in conservative-leaning states with Democratic senators such as Arkansas and North Dakota should voice their opinions on how their senators should vote, preferably by phoning their senators’ offices (see the Senate’s website).
Based on his previous rulings and those of the remaining Supreme Court justices, Alito’s elevation will:
• Ban partial-birth abortion: The federal fight over this horrific procedure began in 1995, and after President Bush came into office, Congress both passed the ban and the President signed it. However, the courts continue to prevent its enforcement. During a partial-birth abortion, an unborn child, up to and including 9 months of age, is delivered feet-first until only his head remains inside his mother’s womb. Then the abortionist, instead of simply completing the delivery, stabs the baby in the head and vacuums out his brain. Since generally pro-abortion Justice Anthony Kennedy dissented from the ruling striking down a state partial-birth abortion ban in the past, it seems likely that after more than a decade, this fight will finally be won. The victory will be largely symbolic since other late-term abortion procedures will remain legal, but symbolic victories lead to substantive ones.
• Uphold parental consent: It seems probable that Kennedy would vote to uphold parental consent laws for girls having abortions, at least those laws that allow exceptions to be made if asking her parents would not be in her “best interest” as determined by a judge. Such laws are better than nothing. Supreme Court precedent is muddled on this question.
• Promote free speech: Kennedy dissented from the 5-to-4 majority, including O’Connor, that upheld the McCain-Feingold law’s restrictions on political speech. Such restrictions disproportionately harm pro-life advocates, since media organizations are exempt from the law—and we know which side of the abortion divide most media organizations are on. The National Right to Life Committee fiercely contested the McCain-Feingold law, which President Bush signed after promising not to.
• Enhance freedom of religion: Alito’s record clearly shows great deference to the free exercise of religion, whereas O’Connor’s bizarre vacillations between accommodating free exercise and prohibiting it have led to 5-to-4 decisions that have made religious exercise jurisprudence an ever greater mess than it was before she joined the court (and that’s saying a lot). Alito as justice will lead to a series of 5-to-4 decisions favoring a restoration of some of the religious freedoms outlawed by the courts, particularly those that prohibit a religious person from speaking religiously because he is located in a public place. Since many pro-lifers are religiously motivated to some extent, this will allow them to communicate freely.
We pray for the day that Roe goes, but until then, we can still make progress.