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Monday, October 31, 2005


Mark Brumley

Well done, Valerie.


The plain simple fact is that Alito voted in favor of partial birth abortion as a fundamental right. We don’t need to go any further than that. It doesn’t matter why or how. There can be and is no good excuse or reason for doing so. Ever. And there is no explaining it away.

Now, some will try to say that he was compelled to do it. In the face of all logic and simple human decency, and despite the fact that the oath he swore was to uphold the Constitution, which is more than Supreme Court precedent and which does not say that murder is a right, they say that he was forced to stand on the side of the butchers because the Supreme Court made him do it. Just like the judges in antebellum America were forced to return fugitive slaves, just like judges in 1930s Germany were forced to sterilize Jews and send them to concentration camps, because a bunch of judges above them (who think themselves to be “the law,”) said so, that is, they were just "following orders," notwithstanding the fact that all human decency cries out against it.

But the fact is that it is quite apparent that in Planned Parenthood v. Farmer he didn’t even try to distinguish the N.J. case from Stenberg. He made no attempt to find a way to uphold the N.J. partial birth abortion law. He even rejected a request that the N.J. state courts be allowed to interpret the N.J. law before he struck it down. He made no analysis of the issue at all — he simply summarily, casually, and coldly upheld partial birth abortion as a fundamental right.

And he certainly was not forced to rule that unborn “human beings” are not included within the meaning of “person” contained in the Fourteenth Amendment. The Alexander v. Whitman case had nothing to do with abortion, it was about wrongful death actions, which does not require application of abortion law, which is sui generis. Why the hell else do we permit murder charges for at attack on a pregnant woman that results in the death of the unborn child?

We cannot turn a blind eye to this. We cannot, once again, simply hope and pray and cross our fingers. And like those “intellectual superiors” at NRO so recently taught us, we should not be forced to simply trust that he will do the right thing. Anyone who can ever vote in favor of partial birth abortion — for any reason whatsoever — anyone who can allow himself to be personally involved in abortion, who can cooperate with and participate in such evil, as he did, is disqualified from sitting on the Supreme Court and is not qualified to sit on any court anywhere, even if he does have a fancy degree from an Ivy League school — and especially if he calls himself a Catholic. The Doctrinal Note is clear and authoritative -- no Catholic in public life (which would include judges) can ever cooperate with, or in any way support or acquiesce in, the evil of abortion.

The Farmer concurrence is indefensible. After that decision, there is nothing that can ever make him acceptable.

Scalito? Ha. He gives every appearance of being Cuomito — “personally opposed, but” bound by his judicial conservatism to give respect to stare decisis and uphold Roe and Casey. There is absolutely no evidence that he will overrule them. In fact, he gives every indication that he will reaffirm them. Certainly, his decisions until now have shown that it does not violate or bother his conscience one bit to strike down abortion laws and permit the butchery to continue.

Planned Parenthood v. Farmer (partial birth abortion) –
Alexander v. Whitman (personhood of unborn human beings) –


Perhaps he was morally wrong to issue the opinion he did: I don't know. But if he was, the proper moral thing to do would have been to either recuse himself or resign his judgship, not to base his judicial opinion on his own personal ethics or on his private interpretation of the constitution. An appelate judge must apply the constitution as it is interpreted by the Supreme Court of the United States, even if he personally disagrees with said decisions. That's an appelate judge's job. As for distinguishing the New Jersey case from the Nebraska case, what if he didn't honestly see a difference that would make a difference? Should he pretend he does to achieve a certain outcome? Perhaps it isn't possible to be a good Catholic and a good appelate judge at the same time. Perhaps Alito isn't a good Catholic - I don't know. That said I see no reason to think he won't be a good jurist because he followed the Supreme Court's interpretation of the constitution rather than employing private judgment - as all appelate judges should. Nor does it indicate that he will always follow past Supreme Court precedent since the Supreme Court is allowed to revisit and overturn its own decisions (as it did in Brown vs. The Board of Education and most recently, though unfortunately, in Lawrence vs. Texas).

Sean Hannaway

I have read Judge Alito's Farmer decision. I have to differ with "Bender" on a couple of points.

First, Alito's decision to uphold the lower court's decision and his opinion that returning the case to the New Jersey Court for an advisory opinion were, frankly, dictated by the facts. As a lawyer, I know how to argue a legal point of distinction based an even minor differences in the case. Sometimes, however, this is not possible. Alito's conclusion that the cases are indistinguishable, is hard to argue against. Moreover, the Supreme Court had just rejected to request an advisory opinion from the State Court in the Nebraska case on the same facts. The import of this is that they concluded that the defects in the statute were such that no interpretation of it in accordance with state law would cure them. Alito was correct in treating this as binding on him as a lower court judge. The bottom line is, that Alito's opinion is, despite the outcome, consistent with a principled judicial restraint.

That being said, it does not answer Bender's moral objection. As the subsequent poster pointed out, in these circumstances, a Catholic may be required to recuse himself or resign. Indeed, if that is the choice, it seems to me that the proper course is to resign. A judge can't recuse himself because he may have to rule against his conscience. He must recuse himself because he can't be fair. This would mean that Alito, or any Catholic judge, may not hear any abortion case.

I am willing to give Judge Alito the benefit of the doubt despite my belief that all abortion is murder. My reason is this. His opinion simply states how he believes the law applies in this case. To the extent he has a moral obligation to stop the abomination of abortion, his opinion could not change anything. The NJ statute was enjoined from enforcement. Based on the Supreme Court's precedent, it would never be enforced. In this, Alito was correct. This accomplishes two things. First, New Jersey now has the basis on which to change its law to come into compliance with Supreme Court precedent. Many states did this (although I am not certain NJ did). We will soon find out if these statutes will stand (pray that they do). Second by preserving the integrity of his judicial principles, Judge Alito is in a much better position to address other abortion restriction laws - and likely uphold them.

We must judge his acts by their consequences. Is it really more moral to "take a stand" in accordance with your Faith if you frustrate the ultimate goal bringing that Faith to the world and saving lives? I believe more lives will be saved by Judge Alito's selection for the court than otherwise would.

The scourge of abotion will not be eliminated by judges, but by a change of heart in society. What is needed is more judges that do not hinder this work. Judge Alito seems to be such a judge.


Bravo, Bender.


Thanks, Mark, for saying just just what I have been thinking this whole time. You know, a vote for child-murder is a vote for child-murder; if a Catholic appeals court judge is basically bound by law to vote along with the Court, then they better do the right thing or not put themselves in that position.

It's a matter of WHO you serve above all; if the State calls us to do what is in conflict with the law of God, then we are obligated to refuse.

So many out there (including the untold legions of Bushite Catholics) will be horrified at such a perfectly sensible proposal, whining about how 'complicated' the political realm is; in the end, however, faced with two contradictory paths, who shall we choose?

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