Thursday, January 06, 2005

We should only be so lucky
I really, really wish that George Will was writing for the White House. He recently offered a statement that he wishes he could hear from the President's lips, and I think if W listened to this advice, judicial nominations would go much, much smoother—particularly when relating to Roe v. Wade issues:

"Because I think it is improper to ask how a prospective judicial nominee would vote on a specific question, I shall not know how my nominees would rule in the event -- an unlikely event -- that the court revisits the constitutional foundation of abortion rights established by Roe v. Wade in 1973. However, I will seek judicial nominees disinclined to concoct spurious constitutional mandates for their policy preferences, as I believe the justices did in Roe. On the other hand, the orderly development of constitutional law requires that justices be generally disposed to respect precedents, even dubious ones, if they have been repeatedly reaffirmed for decades.[...]
"Even many people who strongly favor abortion rights believe those rights should have been established by legislation rather than litigation. They believe, as I do, that Roe, which discovered a right to abortion in the emanations of penumbras -- or was it penumbras of emanations? -- of other rights, was judicial overreaching, indistinguishable from legislating.
"Notice the language of 'trimesters.' How is that demarcation grounded in the text, structure or previous construings of the Constitution? Ask yourself: What would constitutional law pertaining to abortion be if the number of months in the gestation of an infant were a prime number -- say, seven or 11? That the court spun different degrees of abortion rights from the fact that nine is divisible by three reveals that whatever the court was doing was not constitutional reasoning."
How refreshing would it be to hear that?

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