Sunday, July 31, 2005

Roberts and Roe

I am fascinated that the nomination of Judge Roberts for the vacancy on the US Supreme Court seems to hinge on the issue of abortion. Why on earth does this really take such a preeminent role in the decisions of the courts?
To me, abortion is the classic moral dilemma, where good people can come down on both sides. Personaly, I do believe that a fetus is a seperate and distinct person, having its own unique DNA, and is not just a part of a woman's body. Sure, she should have the ability to choose, but in 98% of all abortions, she did have the choice before she became pregnant.
Conversely, I do not think that the government has any business telling her what to do about her pregnancy, or for that matter, much of anything else. Nothing makes a man more pro-choice, than when his girlfriend of the moment lets him know that she is "late."
Roe v. Wade is settled law, albeit, settled in the worst way. The history of the decision, as written by Woodward, illustrates Blackmun's unethical individual research, flawed logic, and incoherent reasoning. Even so, suppose that the Supreme Court decided tomorrow, that abortions no longer are cosntitutionally protected. Would that mean that abortions would end? Maybe in Alabama, but not necessarily in the Northeastern US, or even here in Montana.
I think that one of the reasons why abortion takes up so much time in these nomination hearings, is the awareness by the proponents of Roe in the weakness of their case. Suppose for a minute that some judge says that the 14th Amendmnet does not apply to women. A legally plausible theory, that is politically impossible. No one would seriously say that women should have their franchise stripped from them. Yet, if someone questions overturning Roe, there is a hue and cry throughout the land.
Why not select judges who say that the law is the law, even if I don't agree with it. If you did, you would never have overturned Dredd Scott, or Plessy v. Ferguson, but there is still the rememdy of legislative action if the decision was morally wrong.
In the current state of the law, every question becomes a candidate for the Supreme Court because they are so inconsistent in applying pronciples to issues. A great example are the two cases that came out of Michigan, where affirmative action selection is wrong at the undergrad level but fine for the law school. Well, what about a business program, can they discriminate at the MBA level, but not at the undergrad level? And what really havppens when after 25 years pass?
Give me a justice who follows the law and I will be happy, because the majority can force the cowardly legislaoures to do the right thing.
Now all we need to do is to elect courageous members of the legislature.

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