Strengthening Constitutional Self-Government

No Left Turns

Litwick on Alito

Demonstrating how difficult it is to "demonize" Judge Alito on his abortion opinions, Dahlia Litwick offers a measured account of them. Here’s a snippet:

It’s almost impossible to predict what a judge will do with cases that present fact patterns that do not yet exist; and it’s hard to tell what an appellate court judge might do once he’s seated on the high court. Certainly we should scrutinize Alito’s 1985 job application for hidden motives, just as we should scan his opinions for judicial theory. But randomly classing together disparate abortion cases will tell us very little about Alito—save for the fact that he’s not so reflexively pro-life or pro-choice that the rest of constitutional law is just wallpaper for him. That should give both sides in this discussion some measure of comfort going forward.


I’m guessing it won’t.

I’m prepared to quibble with some of what she says, but not with the overall argument, which is that Alito can distinguish between his personal views and his role as a judge, and that, in the latter, he is a careful craftsman who takes a variety of considerations into account as he constructs his opinions. While PFAW and NARAL will no doubt try to make the most of tidbits taken out of context, they aren’t likely to succeed in derailing this nomination.

Discussions - 1 Comment

Alito was expressing his view of the Constitution, not his personal opinion about abortion. He should follow his view of the Constitution, which is the correct view that it does not protect abortion. The statement in the application could not be clearer. He will lose credibility if he runs away from it.

That said, I would prefer not to see Roe overturned in one fell swoop. It would be bad for the Republican party and for the broader social-conservative cause, of which abortion is only one part. Indeed, it would be bad for the pro-life cause.

Better that Roe die a death of a thousand cuts. Or three or four, at least. If a less violent metaphor is necessary, let’s say: Erode it gradually into nothingness. If Alito gets onto the court, we will have started on that project. If another conservative replaces one of the liberals, I think we will eventually achieve the goal.

The same can be done to other noxious "precedents."

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