A Dime’s Worth of Difference: Bush’s Supreme Court Nominations

By: Robert E. Meyer

One of the most common phrases uttered by true conservatives, who are disgusted with Republicans in both houses of Congress who perpetually cave-in on standing for conservative values, is that there isn’t a dime’s worth of difference between the two parties. But when we survey President Bush’s appointments to the Supreme Court in light of the recent decision on the legality of partial birth abortion, we must beg to differ–in at least this one area.

Let’s be candid and admit that if a Democrat were in the White House, we would have never got votes upholding the ban on partial-birth abortions from the justices who would have sat on the court in place of Roberts and Alito.

Liberal syndicated columnists, namely Ellen Goodman, have been obsessed with emoting sour grape diatribes about the ruling. Goodman has been profuse in chiding the “swing vote” on the current court, Justice Kennedy (and remember, I said in a previous piece my “pipe dream” was that Kennedy would come back to his ideological roots when bathed in a conservative majority, ever so slight as it currently is) for his “paternalistic” comments in the court’s recent decision, concerning the natural bond between mother and child. In fact, Goodman compared Kennedy’s demeanor to the patronizing posture of Justice Joseph Bradley in the famous 19th century Bradwell case, where the Supreme Court was deciding if a woman should be allowed to serve as an attorney.

Two quotation from Bradley from that case are as follows…

“The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

“The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

Certainly this quotation must be puzzling to those who repeat the contemporary mantra about American jurisprudence having no historical connection to Judeo-Christian values.

Interestingly enough, Goodman chimes on about how a “woman’s right to choose” has been dealt a hemorrhaging blow by this ruling. She seems totally oblivious to the fact that both the congress and the general public are squarely against partial-birth abortion.

But even more remarkable, Goodman’s rant never even mentions the unborn child. The narrative of the Supreme Court decision includes ten detailed narrative pages graphically describing the gruesome procedures involved in terminating these children. Goodman never makes the argument that the autonomy of the woman outweighs the right to life for her unborn child, she simply never mentions the child as a factor at all.

That is not the only thing I find egregious. Accusations have already been made that the justices who voted to uphold the partial-birth abortion ban, did so, forsaking objective jurisprudence, while following their collective religious consciences. This is said because the justices voting to uphold the ban, all happen to be Roman Catholics. On the other hand, no dispersions are cast against Ruth Bader Ginburg, despite her longstanding partiality as an advocate of feminist activism. Why wouldn’t that sort ideological bent threaten the integrity of Gingurg’s jurisprudence?

It has become common fare these days to suggest that the progress of medical science has been held hostage by a minority of religious zealots who proffer and impose “superstitious” objections on the “enlightened” consensus (the stem-cell debate, and the issue of unlimited access to contraception by teens are notable examples). In reality, it is those advocating partial-birth abortions who are futile in their scientific understanding, by essentially claiming that an unborn baby that is otherwise viable outside the womb, is nevertheless not a person when three inches of its head remain inside the mother’s birth canal. We need a warped sort of functionalism to find the logic in that sort of dichotomy.

We will also hear the irrational argument that this ruling does harm to the fundamental right to choose, as though persons identifying themselves as “pro-choice” concerning abortion in general, have a libertarian predisposition on the concept of free individual choice. We could quickly deduce that the same folks who consider themselves “pro-choice,” are suddenly against “choice” when the decision involves educational options for children, or the constitutional right to bear arms.

Many people are celebrating this decision as a big victory, and maybe I should also. I simply can’t figure out why the decision of the court wasn’t 9-0, much less a slim victory because of who happened to appoint the last two justices.

On what shred of decency are the four votes against upholding the ban built upon?

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