Tuesday, November 01, 2005

The Alito nomination

So far, I think the best analysis of Samuel Alito's record and what we know of his views is provided by Julian Sanchez at Reason's Hit & Run blog: here, here, and here. Good op-ed by Ann Althouse in the New York Times. The upshot of it seems to be that Alito is not the Scalia-like ideologue he's made out to be.

Here's a particularly interesting tidbit:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he's so far been made out to be. Demleitner cites Alito's majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country's "gender specific laws and repressive social norms" would be deeply abhorrent to her.

"To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution," says Demleitner.

A law professor at Hofstra University who clerked for Alito from 1992 to 1993, Demleitner said she and her former clerks are scratching their heads at the appellation "Scalito," which news reports say is Alito's nickname, and which plays into the notion that Alito is a carbon copy of Justice Antonin Scalia.

"The only thing we can think of is demographics," she says. "They're both Italian Catholics from Trenton.

"He's not an originalist; that's the most important thing. I don't see him saying, 'As the Framers said in 1789,' the way Scalia writes his opinions," adds Demleitner, who says she's a liberal Democrat. "I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito."

(Hat tip: Andrew Sullivan.)


There is, of course, Alito's controversial dissent in Planned Parenthood vs. Casey, upholding Pennsylvania's spousal notification (not consent) law for abortions. A good analysis of his dissent can be found at Patterico's. See also Orin Kerr, at The Volokh Conspiracy, for a discussion of another Alito opinion, concurring in a ruling striking down New Jersey's partial-birth abortion ban. Based on these two opinions, I don't see how Alito can be pegged as a pro-life zealot.

For the record, while I am staunchly pro-choice, I think that spousal notification is a painfully complex issue. Yes, it's the woman's body. It's also the man's future child, and while there may be no good way of balancing the man's and the woman's interests when those interests compete (i.e. when one of them wants to have the child and the other doesn't), I think that our current system, in which women have all the reproductive rights and men have the responsibilities, is seriously flawed. I don't believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions. Paternal consent, in my view, goes too far in infringing on the woman's bodily autonomy; paternal notification, on the other hand -- with exemptions when there is domestic violence or other complicating factors -- may not be such an onerous measure.

There is also, of course, the issue of Alito's own gender. Eric Muller, who personally knows and likes Alito, expresses disappointment that one of only two women on the U.S. Supreme court is being replaced by a man. I share that disappointment on some level; I would have especially liked to see a conservative woman on the high court (particularly a conservative with libertarian leanings). However, I also don't like the idea of gender -- or race, or ethnicity, or religion -- being the determining factor in someone's selection for a post or a job. I don't mind it being a "plus"; but if, after the Harriet Miers fiasco, Bush had picked another woman -- unless this woman was clearly the best qualified candidate -- it would have been a clear statement that the vacant seat was a "woman's seat." And that, I think, is something best avoided.

Update: In Slate.com, University of Virginia law professor Richard Schragger makes the case that Alito's rulings show a consistent tendency to favor laws restricting abortion as much as the Supreme Court permits.

37 comments:

Ampersand said...

Nearly half a century ago, Kurt Vonnegut skewered the belief that it's wrong if some people have abilities everybody doesn't share, in his short story "Harrison Bergeron." That story is very relevant to the "choice for men" debate.

Cathy wrote: I don't believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions.

The claim that men have no choice is not only mistaken, it belittles men's agency.

Do you really think I have no choice whether I have sex or not? No choice over if the form of sex I have will be coital or not? No choice whether I use birth control or not? Men are not helpless children, incapable of making sexual choices.

If my partner is female, she has a choice I lack - the choice to abort. (She also faces risks I don't). But because she has a choice I don't, doesn't mean I have none at all.

Is this fair? No, it's not fair - not in the sense that the government in Harrison Bergeron-land understood "fairness," which seems to be the sense you're use.

But in another sense, our system is fair, because it treats men and women the same: Everyone has the right to fully control whichever reproductive organs they have, and everyone has the responsibility to deal with the consequences of their choices.

(I do think the rare cases in which a pregnancy resulting from a man being raped leads to him being ordered to pay child support are unjust, and I'd strongly support a legal remedy for that situation.)

William R. Barker said...

First... thanks for all the useful and edifying links!

Second... and related... honesty is the best policy and the Alito nomination is a perfect vehicle for various blogs - including this one - to demonstrate just how dishonest and self-serving much of the MSM coverage of vital issues facing the nation truly is.

Personally, I want another Scalia or Thomas on the High Court! Maybe Alito fits the bill... maybe he doesn't. Regardless of whether readers applaud my hope for "another Thomas or Scalia" or cringe at the very thought, honestly reviewing and understanding Alito's record is the surest way for one to decide if they favor or oppose the nominee.

I'm looking forward to the Senate confirmation hearings. I'd guess we all are. Wouldn't it be nice if our Senators would dispense with the usual partisan showmanship and take the matter as seriously as their constitutional duties call for them to take it?

Wouldn't it be GREAT if instead of pontificating for the press and special interests Senators stuck mainly to asking Judge Alito questions concerning his understanding of constitutional law and the role of the Supreme Court?

I have a dream... that one day my elected officials, Democrats, Republicans, Socialists (nod to Bernie Sanders), and Independents (nod to Jim Jeffords), will one day spend 1/1000th as much time reading the U.S. Constitution as they do attending fundraisers in an average week.

As much as I look forward to the coming hearings, I dread the inevitable "when did you stop beating your wife" questioning that Alito will no doubt be subjected to.

I know I'm living in a fantasy world if I expect Senators to stay on the straight and narrow... but jeez... wouldn't it be nice?

bearblue said...

Sci-fi today...

We have the ability to connect sperm and egg successfully via test tube. We have the ability to preserve the life of a weeks old child in special environments. It's not optimal, but it's doable.

If a mother doesn't wish to carry to term, but the father desires the child, it might be a point of consideration - as long as the father was willing to take on the cost.

Hey, it's a thought.

Maybe a thought without merit, but a thought nonetheless.

That said, as with Meirs, I'm waiting to see how this one plays out. I'm not thrilled, but I'm not chilled either.

Revenant said...

Do you really think I have no choice whether I have sex or not? No choice over if the form of sex I have will be coital or not? No choice whether I use birth control or not? Men are not helpless children, incapable of making sexual choices.

So if I were to favor banning all abortions except in cases of rape, could I legitimately describe myself as "pro-choice"? After all, the woman chose to have sex, and thus chose to become pregnant -- so, under your reasoning, it could fairly be said that she already chose to have a child. And if the woman is allowed to change her mind about having a child after pregnancy has already occurred, why isn't the man? Or, more specifically, why is he obligated to honor the woman's decision and bear the costs of it, when he had no say in that decision himself?

I don't think the parallel to "Harrison Bergeron" is valid here. Nobody is suggesting that men be fitted with prosthetic wombs, or woman rendered incapable of carrying a fetus, just to equalize things. There is a perfectly fair way to be fair and equal here without resorting to ridiculous means, and that is to recognize that men don't have an obligation to support a child if they note, before that child is born, that they don't want it. That may seem cold-blooded, but I don't see how it is any more cold-blooded than abortion itself is.

But because she has a choice I don't, doesn't mean I have none at all.

She has the choice to either support a child, or to not support a child. You, as the man, have no choice -- the woman has one hundred percent of the power to decide whether or not you will be supporting a child. It seems fair to say that you have no choice if somebody *else* is deciding your future for you. There is no just argument for giving one party all of the decision-making power but offloading half, or more, of the financial burden on a person who has no say in the matter.

Cathy Young said...

Barry, I'm ambivalent on the "choice for men" issue myself because men and women are clearly not "similarly situated" in this case, and I think it's universally assumed that control over one's money is not quite as vital as control over one's body.

However, I'm sure you're aware that your arguments about the choices that men do have echo with an uncanny precision the arguments made by abortion rights opponents -- that women have the choice not to get pregnant.

Also, what about cases of men who are misled into believing that their partner is using birth control? It's been known to happen.

Bearblue's scenario may not be inconceivable (damn those puns!) in the not-very-distant future. What if a fetus can be removed from the woman's body with no more danger or discomfort to her than she would suffer from an abortion and grown to term in an artificial womb? Would it be an infringement on the woman's rights to make her a mother without her consent? Would it be fair to demand that she pay child support?

But that's a bit off-topic, since Alito's dissent did not have to do with a man's right to decline paternal responsibilities but with being included in the abortion decision.

Ampersand said...

I don't think the parallel to "Harrison Bergeron" is valid here. Nobody is suggesting that men be fitted with prosthetic wombs, or woman rendered incapable of carrying a fetus, just to equalize things

In your first paragraph, you suggested that women (apart from cases of rape) should not be allowed to have abortions, in order to treat men and women the same. That is precisely the logic of Harrison Bergeron - women have the ability to use abortion, but shouldn't be allowed it in order to make men feel equal.

Rape aside, men can choose to put themselves in a position where they might become a father - or they can choose not to. I see no reason to free men, and men alone, from responsibility towards their own born children.

It's illogical to claim that "you, as the man, have no choice," because abortion is not the only way of preventing pregnancy. If there is more than one method of avoiding pregnancy, and men have access to some of them, then logically men have a choice.

There is a perfectly fair way to be fair and equal here without resorting to ridiculous means, and that is to recognize that men don't have an obligation to support a child if they note, before that child is born, that they don't want it.

That's only fair and equal if you completely ignore the third party: the child. And under your policy, there would be many more fatherless children born (it's statistically true that the less child support men have to pay, the more single-mother births happen).

Even if I agreed that it's unfair to expect men to take responsibility for their freely-made choices, I'd still oppose your suggested policy. The disadvantages to children whose fathers refuse to support them, are far larger than the disadvantage to fathers who have to pay child support payments when they'd rather take no responsibility. I can't justify screwing over children to benefit fathers.

Furthermore, children have less choice about their births than either fathers or mothers, so if we're going to say "let's give the most consideration to the party who has the least choice in the matter" - which is what your argument amounts to - that again indicates that we should put children's interests first, not fathers'.

Ampersand said...

Cathy, do you object to off-topic or digressive comments on your blog? If so, let me know, and I'll stop it. (Personally, as long as it's interesting, I welcome digressions.)

...I think it's universally assumed that control over one's money is not quite as vital as control over one's body.

I don't think that's universally assumed, but I'm glad you and I agree on that, at least.

However, I'm sure you're aware that your arguments about the choices that men do have echo with an uncanny precision the arguments made by abortion rights opponents -- that women have the choice not to get pregnant.

Yes, but the comparison is deceptive; it implies that the disparity is caused by hypocrisy in the feminist position, when the disparity is actually caused by differences in male and female anatomy. (Do you really think that pro-choicers would deny men the right to abortion, if men were physically capable of pregnancy?)

When pro-lifers say women's only chance to decide about parenthood is before pregnancy happens, that's their subjective opinion; what they really mean is, "I want to deny you one of your medically viable options." That's unjust, because we should all have the individual right to direct our own medical care.

In contrast, when I say men's only chance to decide about parenthood is before pregnancy happens, that's a statement of biological fact. It's not an argument in favor of denying men viable medical options; it's an observation that men physically lack those options.

Although the two statements look similar on the surface, the substantive differences between the two positions are enormous.

Also, what about cases of men who are misled into believing that their partner is using birth control? It's been known to happen.

To me, that seems similar to rape of a male victim, in terms of the father's obligation towards the child. If such a situation were proved beyond all legitimate doubt, I'd favor giving the father a one-time shot to give up all legal obligations and rights.

What if a fetus can be removed from the woman's body with no more danger or discomfort to her than she would suffer from an abortion and grown to term in an artificial womb?

Then after the point the fetus is removed, women's and men's rights should be identical. What exactly those rights are is a different and more difficult question.

If one parent ends up raising the born child alone, then of course it's fair to have the other pay child support - regardless of if its the mother or the father. But that's true today, as well.

Revenant said...

In your first paragraph, you suggested that women (apart from cases of rape) should not be allowed to have abortions, in order to treat men and women the same.

I did no such thing. I merely asked why, if you think "you could have decided not to have sex" is all the choice a *man* is entitled to, you think women are entitled to more. Excluding rape victims, every pregnant woman in the world chose to have sex.

That's only fair and equal if you completely ignore the third party: the child. And under your policy, there would be many more fatherless children born

Only if the mothers chose to give birth to fatherless children. They have the option to abort the fetus and avoid that.

that again indicates that we should put children's interests first, not fathers'

If putting the child's interests first is that important abortion should obviously be illegal. You can't credibly argue that killing something is OK but refusing to pay for its upbringing is wrong.

Anonymous said...

"Paternal consent, in my view, goes too far in infringing on the woman's bodily autonomy; paternal notification, on the other hand -- with exemptions when there is domestic violence or other complicating factors -- may not be such an onerous measure."

What on earth would parental notification laws accomplish? Having the government enforce a man's constitutional right to talk a woman out of having an abortion?

Ampersand said...

I merely asked why, if you think "you could have decided not to have sex" is all the choice a *man* is entitled to, you think women are entitled to more.

I don't think women are "entitled" to one choice more than men; I think they have one choice more, as a matter of plain biological fact.

(By the way, thank you for conceding that men do, in fact, have some choice).

Only if the mothers chose to give birth to fatherless children. They have the option to abort the fetus and avoid that.

But that's the mother's choice, not the child's. It's unjust to punish the child for a choice the mother made, isn't it?

If putting the child's interests first is that important abortion should obviously be illegal.

This assumes what's at issue in the abortion debate. Saying that the fetus or embryo has "interests" at all assumes that the pro-life view is correct; but, obviously, there is no widespread agreement about that.

In contrast, there is virtually universal agreement that a born child is an entity with interests and rights that must be respected.

So - again - I don't see why the interests of a father (rape and deception cases aside) should outweigh the interests of a born child.

Cathy Young said...

Barry, I see your point about not taking support away from children already born. Though it's noteworthy that a mother can give a baby up for adoption after birth, as well.

But I'd like to point out at least two things a woman can legally do that can deprive an already-born child of paternal resources.

(1) She can go to a sperm bank and get artificially inseminated, upon signing a contract that relieves the sperm donor -- i.e. the biological father -- of all parental obligations.

(2) She can deliberately choose not to collecting child support because she'd rather not have the father involved in the child's life and in her own -- either not inform him of the pregnancy, or tell him that she is willing to forgo child support if he promises not to assert his paternal rights. Obviously it's up to the man whether to accept such a bargain, but the point is, the mother has the legal right to offer it, and quite a few do.

In other words, it seems that for a father to choose to deprive an already-born child of paternal support is illegal; for a mother, it's legal.

Anonymous said...

Bush had picked another woman -- unless this woman was clearly the best qualified candidate.

Reading this line and some of the blog chatter about Catholic majorities got me thinking. "Best qualified" isn't really the right goal - I suggest "best choice among the qualified".

Business has long recognized that diverse teams do the best collective work (which isn't necessarily what AA-like "diversity" programs provide, they aren't what I mean). What's wrong with saying that the SCOTUS needs to broaden it's perspective (by gender, ethnicity, professional experience, etc.) to deliver the best possible results?

Congress does OK with a mix of lawyers, business types, community activists and actors. Why should the court have to be an ivory tower of realative intellectual uniformity?

For the record, I'm a top ten law school grad and have worked in-house in F100 companies for a long time.

Jodie said...

But I'd like to point out at least two things a woman can legally do that can deprive an already-born child of paternal resources.

(1) She can go to a sperm bank and get artificially inseminated, upon signing a contract that relieves the sperm donor -- i.e. the biological father -- of all parental obligations.

(2) She can deliberately choose not to collecting child support because she'd rather not have the father involved in the child's life and in her own -- either not inform him of the pregnancy, or tell him that she is willing to forgo child support if he promises not to assert his paternal rights. Obviously it's up to the man whether to accept such a bargain, but the point is, the mother has the legal right to offer it, and quite a few do.

In other words, it seems that for a father to choose to deprive an already-born child of paternal support is illegal; for a mother, it's legal.


These are not options for every woman; both take $$ or family support or both.

And there are cases where the father takes the child and the mother signs off her rights.

William R. Barker said...

Cathy Young writes:

I'd like to point out at least two things a woman can legally do that can deprive an already-born child of paternal resources.

(1) She can go to a sperm bank and get artificially inseminated, upon signing a contract that relieves the sperm donor -- i.e. the biological father -- of all parental obligations.

(2) She can deliberately choose not to collecting child support because she'd rather not have the father involved in the child's life and in her own -- either not inform him of the pregnancy, or tell him that she is willing to forgo child support if he promises not to assert his paternal rights. Obviously it's up to the man whether to accept such a bargain, but the point is, the mother has the legal right to offer it, and quite a few do.

In other words, it seems that for a father to choose to deprive an already-born child of paternal support is illegal; for a mother, it's legal.

---------------------------------

As for the first point... I'm pretty sure you're wrong. Legally that is.

A man can't sign away his responsibilities. His sperm... his responsibility. Harkening back to a famous "Goreism," that's the controlling legal authority.

The father - and mother - can sign any kind of contract they want... but it's the CHILD'S rights we're talking about and neither parent can legally sign those away.

As to Point 2... under the same logic... I wonder if the child himself could win a lawsuit against the father for support retroactively?

(Any attorney's reading? Thoughts? Opinions? Facts?)

As to your last point, Cathy - dead on, hon! Life ain't fair.

William R. Barker said...

One of the "Anonymous'" writes:

Congress does OK with a mix of lawyers, business types, community activists and actors.

----------------------------------

Congress does o.k.? Man... what's your definition of "o.k.?"

(*SMIRK*)

I'm not one to worship on the high alter of "diversity." I'm far less concerned with diversity than I am with intelligence, knowledge, and integrity.

William R. Barker said...

Ampersand writes:

Cathy, do you object to off-topic or digressive comments on your blog? If so, let me know, and I'll stop it. (Personally, as long as it's interesting, I welcome digressions.)

----------------------------------

It's Cathy's blog... Cathy's choice... but with respect, while agreeing with Ampersand that interesting digressions are welcome, isn't this thread supposed to be about "The Alito Nomination?"

Abortion... abortion... abortion... JEEZUS!!! Why does every Supreme Court nomination have to get bogged down - centered - on abortion?

You know... there ARE other issues members of the U.S. Supreme Court deal with. (*SMILE*)

Ampersand said...

Though it's noteworthy that a mother can give a baby up for adoption after birth, as well.

In most states, she can only do so without the father's permission if she claims that the father is unknown or unfindable. Some states (even those with "drop-off" laws) have procedures for searching for the father in such cases (taking out ads in the newspapers and the like), and if the father can be found he can prevent the adoption from going through.

Legally, women and men should be (and are, in most states) legal equals when it comes to giving up a child for adoption. Of course, fathers can't give birth and keep it a secret from the mother - but that's not because of unequal laws. We can and should make laws to try and make up for that (such as having the government search for the father), but nothing will make men and women identically situated in this regard.

She can go to a sperm bank and get artificially inseminated, upon signing a contract that relieves the sperm donor -- i.e. the biological father -- of all parental obligations.

Not unlike the contracts egg donors sign, relieving them of all parental obligations (and rights). And, in a more extreme way, not unlike the contracts surrogate mothers sign.

Of coure, neither of those is identical to sperm donation - biologically, it's simply not possible to create a child without major involvement from a woman, and the same isn't true for a sperm donor. But insofar as it's biologically possible, similar legal structures exist for both sexes.

She can deliberately choose not to collecting child support because she'd rather not have the father involved in the child's life and in her own...

Actually, she can only do this if she doesn't need welfare. If she applies for welfare, she's legally required to give up the father's name so the state can track him down and collect child support. (The same is true of single fathers who apply for welfare - they have to say who the mother is).

In other words, it seems that for a father to choose to deprive an already-born child of paternal support is illegal; for a mother, it's legal.

You're putting this in gendered terms, but that's misleading, because the actual laws you're describing are gender-neutral. To be more accurate, you'd have to say: It's illegal for a non-custodial parent to deprive a born child of support; but a custodial parent can legally choose not to collect child support, so long as the custodial parent isn't on welfare.

Of course, as you said, a woman might keep a child secret from his father, whereas the reverse never happens. But, again, that's biology; no law you pass will change the fact that men aren't the ones who get pregnant. (And what seems missing from the discussion here is that being the sex which gets pregnant carries substantial disadvantages, as well as advantages.)

Anonymous said...

William R. Barker said...

Congress does o.k.? Man... what's your definition of "o.k.?"

"Ok" means acceptable, without particularly exceeding any expectations. Congress functions just fine, regardless of how well you like the results.

I'm not one to worship on the high alter of "diversity." I'm far less concerned with diversity than I am with intelligence, knowledge, and integrity.

I pretty clearly disassociated my use of the term "diversity" from the nonsense that sits on an alter. My point is that there are many - a few dozen, at least - people qualified by measure of intelligence, knowledge and integrity to be a Justice. Tell us why selecting the individual highest on those three characteristics from the pool is better than selecting an individual from the pool who adds a unique perspective?

William R. Barker said...

"A" writes: "Ok" means acceptable, without particularly exceeding any expectations. Congress functions just fine, regardless of how well you like the results.

WRB replies: We disagree. In fact... both the Majority Leader and Minority Leader of the Senate were all over the news last night basically making the charge. (*SMILE*) I could comment further, but this thread isn't the time nor place.

"A" writes: I pretty clearly disassociated my use of the term "diversity" from the nonsense that sits on an alter.

WRB replies: The "nonsense" that sits on an alter??? I think I'll let that slur stand on its own. (And Cathy... please don't remove his - her? - post. I think readers deserve to know what sort of people they're conversing with.)

"A" writes: My point is that there are many - a few dozen, at least - people qualified by measure of intelligence, knowledge and integrity to be a Justice. Tell us why selecting the individual highest on those three characteristics from the pool is better than selecting an individual from the pool who adds a unique perspective?

WRB replies: Because the job of the Supreme Court is to fulfill its constitutional mandate, and the best predicters that a man or woman will fulfill that mandate properly seem to me to be intelligence, knowledge, and integrity - gender, sexual orientation, color, religion or lack thereof, ideology aside.

Anonymous said...

William R. Barker said...
"A" writes: I pretty clearly disassociated my use of the term "diversity" from the nonsense that sits on an alter.

WRB replies: The "nonsense" that sits on an alter??? I think I'll let that slur stand on its own. (And Cathy... please don't remove his - her? - post. I think readers deserve to know what sort of people they're conversing with.)



You seem to be missing the point. Maybe it's intentional. My "slur" is against "diversity" as used in corporate America as a substitute term for affirmative action programs. I presumed that was the "high alter" you referred to.
You misspelled altar as "alter" so I copied the error to make the reference more obvious.

It appears you had a knee-jerk response a perceived adversary's negative use of a quasi-religious term despite the fact that you used it exactly the same way.

Your answer to the substantive question is nonsense - it's better to pick a candidate with marginally more intelligence, knowledge or integrity because those are the "best predictors of fulfilling the Consitutional mandate"? Time to reread Article III, or better, the Federalist Papers.

William R. Barker said...

Fair enough, "A." (*WINK*) As long as we're on the same page regarding appropriate and inappropriate. Apology freely offered.

As for Article 3... (*SCRATCHING MY HEAD*)... I'm not following. Please be more specific.

I'm also curious as to what in the Federalist Papers you seem convinced contradicts my ranking of intelligence, knowledge, and integrity over "diversity." Please... enlighten me. (*SMILE*)

Finally... while you're at it, "A," could you clarify what you meant when your wrote, "My "slur" is against "diversity" as used in corporate America as a substitute term for affirmative action programs."

For what it's worth, you have my word that I never "intentially miss the point." Perhaps what's clear to you (considering you're the one thinking and putting your thoughts on the blog) may not be clear to all readers. Just a thought... (*SMILE*)

Rainsborough said...

I think that in regard to reproductive choice, public policy should be pedocentric--should put the interests of the child first. If a woman judges that a child can't be cared for well, that conclusion should be respected. (If the father when frustrated throws lamps and smashes pictures, her judgment is especially to be respected.)Since restrictions on access to abortion conduce to ill-cared-for children, I'm against them. Since Alito favors restrictions and would, when it comes to it, overrule a in his view non-superprecedential Roe, and that will result in yet further restrictions, I'm against his confirmation.
But I would concede that abortion is the sort of issue better resolved by legislatures than by courts. So also is the issue whether restrictions should be imposed on access to machine guns. I greatly fear judges who think their judgment on such issues should prevail over that of Congress. On this issue, Congress was acting in response to public opinion, and I think it arrogant of Alito to suppose that his preference should prevail over that of the public and the Congress. The effect of his decision is not to leave it up to the will of the people of the various states, but to the thwart the will of the people of the United States. And he would do this on a whole range of issues, in the same way as judges did before 1937.
Judicial review is deeply undemocratic. But it's not going to go away, and hence one would be foolish and derelict not to oppose empowering a man whose policy preferences would have the result of imposing so much suffering on so many lives. (The lives of children, the lives of mothers, the lives of parents, the lives of immigrants, the lives of innocent detainees--the list grows quite long.)

Anonymous said...

William R. Barker
You mentioned a "Constitutional mandate" that is best served by highest level of the three characteristics you mentioned - neither Article 3 of the Consitution itself, nor Federalist 76 & 77 (via reference in 78) mention any mandate or qualifications along those lines. I don't know of a better place to look for such a mandate.

I don't suggest that the founders valued any of those factors more or less than having a breadth of experience - they were largely silent on qualifications, as they were mostly concerned with avoiding a tyrant. I do believe they would include "independence from the Executive" as a key qualification, however.

As to my note on the term "diversity" that you called a "slur" - I only intended to note that I was using the word in the sense of having varied experiences and qualities, not the business-speak sense where the term "diversity" has become, in some companies, a clumsy substitute for EEO, quota or Affirmative Action-type programs, some of which work very poorly.

Anonymous said...

Highly educated people tend to argue about abortion by analyzing semantics of choice. But in the real world of abortion, choice as we understand it is rare. Such pregnancies usually result not from the failure of properly implemented contraceptives, but because the people using them are too young, drunk, high, stupid or incompetent to use them correctly. People who use credit cards to buy things they know they can't afford aren't making the rational decision to go into debt, they just aren't thinking. People who use birth control sporadically or not at do not weigh the pros and cons and decide to get pregnant.

Most women who conceive children out of wedlock are not post- Enlightenment adults making rational choices for or against motherhood. Debating what constitutes "choice" may be intellectually stimulating in its own right, but it has little relevance to abortion.

William R. Barker said...

To Anonymous:

By "constitutional mandate" I was refering to the High Court's duties in general. The "job" of the High Court so to speak. In my view persons appointed and confirmed to the bench should be first and foremost persons of intelligence, knowledge, and integrity.

Are you truly disagreeing with me???

No... Article 3 doesn't specifically call for nominees of intelligence, knowledge, and integrity... but I think it's fair to assume the Founders would be with me on this one. (*SMILE*) One might even go so far as to assert that where Article 3 speaks of "good Behaviour" this implies not just non-criminality, but competence - often linked to intelligence and knowledge. (*SMILE*)

Feel free to disagree... but I'm satisfied that I've made my position clear and that continually restating it achieves little.

I don't discount the value of varied experience and background. I'm just saying neither trumps intelligence, knowledge, and integrity. Diversity should compliment these other qualifications, not stand alone.

Frankly, "A," I've kinda lost track of what we're arguing about. (*GRIN*) I guess if you're saying that only a woman or minority should have been picked we're arguing about that. If you're saying a woman or minority might have been a better pick... that's a possibility.

William R. Barker said...

Rainsborough said...

I think that in regard to reproductive choice, public policy should be pedocentric--should put the interests of the child first.

------------------------------

WRB replies...

Easier said than done! The first problem is defining an independent human life. Congress refuses to do this.

------------------------------

Rainsborough said...

If a woman judges that a child can't be cared for well, that conclusion should be respected.

------------------------------

WRB replies...

That's one school of thought. The other is that society as a whole - through law - should make the decision.

Again... the crux of the problem is deciding when a fetus is a "child" in the sense of having civil rights that the government is ultimately in charge of safeguarding and enforcing.

Obviously the tension lies (lays???) between respecting the rights of the woman and the rights of the fetus/child/whatever.

------------------------------

Rainsborough said...

(If the father when frustrated throws lamps and smashes pictures, her judgment is especially to be respected.)

-------------------------------

WRB replies...

Nope. Gotta disagree with you there. That argument sidesteps the key question of when a fetus becomes a child in a legal sense.

--------------------------------

Rainsborough said...

Since restrictions on access to abortion conduce to ill-cared-for children, I'm against them.

--------------------------------

WRB replies...

I don't know about you, but I believe in individual rights, not group rights. Even if your stats are correct (which I'm certainly not willing to concede), if one takes the position that a fetus at some point before birth becomes a baby with civil rights... it's not a very compelling argument to say you're taking away the baby's civil rights (and indeed life!) for the baby's own good.

-------------------------------

Rainsborough said...

Since Alito favors restrictions and would, when it comes to it, overrule a in his view non-superprecedential Roe, and that will result in yet further restrictions, I'm against his confirmation.

-------------------------------

WRB replies...

You want judges to act as legislators. That's what it comes down to. I want judges to act as judges.

While in the end I may not end up agreeing with every decision a Justice Alito (or Scalia... or Thomas) hands down, my main concern is not the wisdom of their policy prescriptions, but the integrity of their judicial decisions in keeping with the clear words and meaning of the Constitution as best they understand them.

In other words... disagreement in good faith over what the Founders and writers of the various Amendments are acceptable and to be expected, but any judge willing to subvert the Constitution because they want their own policy prescriptions to be followed even if at odds with the Constitution should be impeached - not applauded.

--------------------------------

Rainsborough said...

But I would concede that abortion is the sort of issue better resolved by legislatures than by courts.

--------------------------------

WRB replies...

Do you mean "better decided, but if the legislature won't do its job the courts must step in?"

With respect... we simply disagree.

--------------------------------

Rainsborough said...

So also is the issue whether restrictions should be imposed on access to machine guns. I greatly fear judges who think their judgment on such issues should prevail over that of Congress. On this issue, Congress was acting in response to public opinion, and I think it arrogant of Alito to suppose that his preference should prevail over that of the public and the Congress.

--------------------------------

WRB replies...

Alito certainly WASN'T substituting his personal preferences for that of Congress. He was saying the Congress didn't have the Constitutional authority to misuse the Commerce Clause to interfere in a purely state matter.

--------------------------------

Rainsborough said...

The effect of his decision is not to leave it up to the will of the people of the various states, but to the thwart the will of the people of the United States.

--------------------------------

WRB replies...

The Founders MEANT for the "will of the people of the United States" to be thwarted in certain matters - specifically when the national will is in conflict with the will of the citizens of a specific state.

--------------------------------

Rainsborough said...

And he would do this on a whole range of issues...

--------------------------------

WRB replies...

Yes... I would hope he would! Judges whose goal is to follow the Constitution are GOOD!!! (*WINK*)

---------------------------------

Rainsborough said...

...in the same way as judges did before 1937.

----------------------------------

WRB replies...

Without going case by case, is it your contention that the farther we get from the time of the actual writing and ratification of the Constitution and its various Amendments, the more we "know" which parts of the Constitution and said Amendments we can... to use a neutral term... "reinterpret?" (*SMILE*)

--------------------------------

Rainsborough said...

Judicial review is deeply undemocratic.

---------------------------------

WRB replies...

Yes.

---------------------------------

Rainsborough said...

But it's not going to go away...

---------------------------------

WRB replies...

True enough.

---------------------------------

Rainsborough said...

...and hence one would be foolish and derelict not to oppose empowering a man whose policy preferences would have the result of imposing so much suffering on so many lives.

------------------------------

WRB replies...

But President Bush didn't nominate a liberal... (*GRIN*)

Listen... basically we've got the pot calling kettle black. It's the NON-originalists who believe in placing their own policy prescriptions above and beyond the text and clear meaning of the Constitution whenever they deem doing so "necessary" for the greater good.

Cathy Young said...

Gentlemen: this debate seems to be degenerating into a squabble over who said what, which is never a good thing.

I hope to be able to add more on the substantive points, a bit later.

Adrienne said...

ampersand said:

But that's the mother's choice, not the child's. It's unjust to punish the child for a choice the mother made, isn't it?

Ugh. That sounds *just* like pro-life rhetoric. So much so, it's scary.

Still, glad to "see" you again, Ampersand. I'm glad you survived the implosion of the late lamented Ms. boards.

I'm so psyched you have a blog, Cathy! Yay, you've always been one of my favorite "pundits" because you're so damn rational and reasonable. Even if you aren't a Democrat.

Rainsborough said...

The Founders MEANT for the "will of the people of the United States" to be thwarted in certain matters - specifically when the national will is in conflict with the will of the citizens of a specific state.

As when the people of South Carolina voted themselves out of the union?

A cheap shot. The more basic question is whether originialists are objective, dispassionate students of the Constitution (who, incidentally, disagree among themselves on both substance and process) and the rest of us are arbitrarily imposing our preferences on others.
The essential point is that people disagree, deeply and passionately, about all the issues, substantive and procedural, raised in your missive, and about many others. When they disagree, what's the fairest way to resolve the dispute? I say, by majority rule--which works out in practice to mean, by a legislature elected by the people. You say, by a majority of nine appointees, accountable, once confirmed, to nobody.

William R. Barker said...

Rainsborough said...

The Founders MEANT for the "will of the people of the United States" to be thwarted in certain matters - specifically when the national will is in conflict with the will of the citizens of a specific state[?]

As when the people of South Carolina voted themselves out of the union?

A cheap shot[?]

--------------------------------

WRB replies...

A cheap shot? No! Not at all! Not exactly what I was thinking of, but fair question.

History is written by the victors and I for one am quite happy that the North won the Civil War. That said... as a constitutional question... I've always wondered how the Founders would have responded to the question, "May a state secede from the Union?"

(Since the Founders would no doubt have had various opinions, let me rephrase to say I wonder what the breakdown of opinion would have been.)

Frankly... I have no idea what the answer is. I know that Andrew Jackson faced down threats of secession. Did he have the constitutional authority to make good on his threats had action been necessary? Is secession the same as "rebellion?"

Hey... good point... thanks for bringing it up.

As for less extreme and theoretical examples of my point...

(*SMILE*)

You have heard of the 10th Amendment... right?

(*GRIN*)

Seriously, Rainsborough, you must understand that the intent of the Founders was to create a workable but yet not all powerful federal government. I'm not going to point to each and every example in the Constitution, Bill of Rights, and subsequent Amendments, but this is American History 101.

--------------------------------

Rainsborough said...

The more basic question is whether originialists are objective, dispassionate students of the Constitution (who, incidentally, disagree among themselves on both substance and process) and the rest of us are arbitrarily imposing our preferences on others.

--------------------------------

WRB replies...

The answer to the question is...

(*DRUM ROLL*)

Basically yes!

(*SMILE*)

--------------------------------

Rainsborough said...

The essential point is that people disagree, deeply and passionately, about all the issues, substantive and procedural, raised in your missive, and about many others. When they disagree, what's the fairest way to resolve the dispute? I say, by majority rule

---------------------------------

WRB replies...

Yes, Rainsborough, I understand what YOU are saying. (*SMILE*) I just don't think that this is what the Founders had in mind. We're a representative Republic, not a direct Democracy. We have a Constitution that is the law of the land. Our Constitution gives us the Amendment process so that if we don't like the Constitution as is we the people can change it. We elect legislators to legislate, presidents to serve as chief executives, and judges to judge WITHIN the law. That's the way it's meant to be and that's the way it should be.

---------------------------------

Rainsborough said...

--which works out in practice to mean, by a legislature elected by the people. You say, by a majority of nine appointees, accountable, once confirmed, to nobody.

--------------------------------

WRB replies...

Now I've lost you. (*SCRATCHING HEAD*) Which side of the debate are you on again? (*SMILE*)

Anyway... I think we've pretty much beat this one to death. Plus... Cathy seems to think we're overdoing it. (*WINK*)

Cathy Young said...

adrienne, thanks for the kind words.

I'm going to make a separate post on the fathers' issue, but for now...

Barry, I agree, of course, that biological differences play a huge role here. I'm not saying there is a simple answer, or any kind of answer at all. I will point out, however, that abortion and reliable birth control are arguably ways in which women's biological disadvantage is neutralized. We have also tried to neutralize it through laws -- for instance, forbidding employers to discriminate against women on the basis of pregnancy and childbirth.

Cathy: In other words, it seems that for a father to choose to deprive an already-born child of paternal support is illegal; for a mother, it's legal.

Barry: You're putting this in gendered terms, but that's misleading, because the actual laws you're describing are gender-neutral. To be more accurate, you'd have to say: It's illegal for a non-custodial parent to deprive a born child of support; but a custodial parent can legally choose not to collect child support, so long as the custodial parent isn't on welfare.


First of all, why is it all right for a custodial parent to make decisions that deprive her or his child of resources, but not all right for a non-custodial parent to do the same?

Secondly, you're right about ostensible gender neutrality. But haven't feminists long argued that an ostensibly gender-neutral law or policy is discriminatory if it has a disparate negative impact on women? If a corporation had a policy of firing any employee who became pregnant, surely it would not be okay just because it applied to both women and men!

Cathy: Also, what about cases of men who are misled into believing that their partner is using birth control? It's been known to happen.

Barry: To me, that seems similar to rape of a male victim, in terms of the father's obligation towards the child. If such a situation were proved beyond all legitimate doubt, I'd favor giving the father a one-time shot to give up all legal obligations and rights.


If the only issue is a child's need for resources, why does it make a difference that the father was deceived? As you said before, why should a child suffer for the mother's decisions? Sorry, but your attitude here reminds me a bit of the right-to-lifers who make an exception for rape and incest cases but feel that it's proper for women to have to "pay" for their pleasure if we're talking about consensual sex.

william, re sperm banks:

As for the first point... I'm pretty sure you're wrong. Legally that is.

A man can't sign away his responsibilities. His sperm... his responsibility. Harkening back to a famous "Goreism," that's the controlling legal authority.


If that was the law, would sperm banks ever find any donors? I'm quite positive that sperm bank contracts include an agreement that the sperm donor bears no responsibilities whatever.

beAzl said...

What a silly law! Of course a wife should tell her husband she’s going to get an abortion. Likewise, a husband should probably mention to his wife that he’s decided to get a vasectomy, just in case she might find that interesting. Entering their anniversary date into his palm pilot is probably a prudent thing to do. Faking you know what during you know what doesn’t seem like a good long-term strategy to me.

But do we really need laws for these things?

Okay, so the good people of Pennsylvania thought they could promote marital bliss by passing such a law. What they failed to do is provide free, postage-paid post cards that women could send their husbands, with a picture of a fetus about to be aborted, captioned “Wish you were here!”

The Supreme Court has not yet discovered a silliness protection clause in the constitution. If they did, it would surely overturn half a century of their own decisions. So they strike the spousal notification down because it imposes an “undue hardship.” What kind of message does that send? Sorry, honey, I would have mentioned I was blowing all our savings on this new dining room set, but then I remembered the Supremes think spousal notification imposes an undue hardship!

William R. Barker said...

WRB originally wrote...

A man can't sign away his responsibilities. His sperm... his responsibility. Harkening back to a famous "Goreism," that's the controlling legal authority.

--------------------------------

Cathy Young replied...

If that was the law, would sperm banks ever find any donors? I'm quite positive that sperm bank contracts include an agreement that the sperm donor bears no responsibilities whatever.

---------------------------------

WRB's final thought...

Cath... I didn't just come up with my "theory" off the top of my head. (*SMILE*) Nor am I basing it just upon my "logic" vs. your "logic."

A few weeks ago this was the topic of discussion on the Curtis and Kuby radio show on WABC AM radio, NYC. I'm basically telling you what Kuby said and he was speaking as a lawyer, not a layman pundit.

Are you aware of the Pennsylvania case McKiernan v. Ferguson? If not, check it out.

The law is in a constant state of flux and the fact that we have 50 state high courts, 94 federal district courts, 12 regional circuit courts, and finally a U.S. Supreme Court that is constantly tweaking its own past decisions certainly complicates our discussion. (*SMILE*)

I'm not disagreeing with you when you write that sperm bank contracts include an agreement that the sperm donor bears no responsibilities whatsoever... but I am saying that all the "agreements" in the world won't stop a court from ruling as it pleases and frankly I agree with the logic of many courts that a man (or woman via egg donation) can't legally sign away the right of support owed to the CHILD resulting from the combination of sperm and egg. (*WINK*)

My bad in claiming "controlling legal authority!" (*SMILE*) Time will tell.

mythago said...

I am pretty surprised to see a Libertarian arguing for this kind of infringement of personal rights. If a husband has no right to interfere in his wife's pregnancy, what is the point of notification? "Ha ha, she's going to get an abortion and you can't stop her"? What interest of the husband's outweighs his wife's right to privacy?

Revenant said...

What interest of the husband's outweighs his wife's right to privacy?

Let me answer with an question: what interest of the wife's outweighs the husband's right to have sex with whomever he pleases? And if the answer is "nothing", then why is adultery considered grounds for at-fault divorce?

This isn't a right-to-privacy issue. State-recognized marriages are legal contracts between two people in which both parties sacrifice some of their rights in exchange for a closer legal relationship. The answer to your question is, therefore, "most people think the state should only recognize marriage contracts if they include the proviso that the wife be honest about her abortions". A women whose right to privacy means more to her than an honest relationship with her partner can always refrain from getting married.

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