[Mb-civic] Pro-Roe and pro-Alito - Joan Vennochi - Boston Globe Op-Ed

[William Swiggard]

  Pro-Roe and pro-Alito

By Joan Vennochi  |  January 15, 2006  |  The Boston Globe

CAN YOU be pro-abortion rights and pro-Alito?

Christine Todd Whitman, the former governor of New Jersey, former Bush 
cabinet member and a pro-choice Republican, is trying to make that case. 
With pro-choice Republican senators facing a vote on Samuel A. Alito 
Jr., Whitman introduced the Supreme Court nominee to the Senate 
judiciary committee -- and backed his nomination.

She did it, she said in an interview, after much thought and two calls 
-- one from the White House and one from Alito.

In Whitman's view, ''I don't think Roe ought to be overturned. It is 
established law." Alito would not say that during last week's hearings. 
She also describes the nominee as ''personally pro-life."

So why back him for the Supreme Court? Does loyalty to a New Jersey son 
trump Roe v. Wade? Why show any fealty to the Bush adminstration, which 
undercut Whitman's efforts as head of the Environmental Protection 
Agency? Does Whitman believe that backing Alito will make her more 
politically palatable to the national GOP?

Those are fair political questions. But Whitman said her support for 
Alito is based on personal knowledge -- as governor, she nominated him 
for the bench. She said ''that you can't deplore a litmus test on one 
side and have it on your own."

Whitman told the committee: ''I have every confidence he will be a 
balanced, fair and thoughtful justice." In a follow-up interview, she 
maintained that Alito ''does not have an ideology that will 
pre-determine his decisions."

As evidence, she points to a New Jersey abortion rights case, Planned 
Parenthood of Central New Jersey v. Farmer. In 1997, the New Jersey 
legislature passed a law banning late-term abortions. Whitman vetoed it 
on grounds that it was unconstitutional. The legislature overrode the 
veto. The appellate court upon which Alito sat struck down the law. 
Alito wrote a separate, concurring opinion, stating that in this 
decision, he was bound by ''controlling Supreme Court precedent."

Abortion rights advocates say the case tells nothing about what Alito 
would do as a Supreme Court justice, when he would be in a position to 
set precedent, rather than be bound by it.

There are other reasons to believe Alito is inclined, if not determined, 
to undercut Roe v. Wade: In 1985, as a government lawyer, he stated in a 
memo that the Constitution did not protect abortion rights. As a member 
of a three-judge panel that heard Planned Parenthood of Southeastern 
Pennsylvania v. Casey before that case went to the Supreme Court, Alito 
wrote a dissent in which he voted to uphold every abortion restriction 
at issue in the law. During his hearings, he declined an invitation from 
Senator Arlen Specter, judiciary committee chairman and pro-choice 
Republican, to label Roe a ''super-precedent" after Casey reaffirmed 
Roe. When Senator Dianne Feinstein of California asked Alito if he 
agreed that Roe v. Wade was ''well-settled in court," Alito answered: 
''It depends on what one means by the term 'well-settled."' In his 
nomination hearings to become chief justice, John G. Roberts Jr. agreed 
with ''settled."

Whitman said she knew her decision would upset people; Planned 
Parenthood Republicans for Choice issued a statement of disappointment. 
She said she made it after concluding that Alito is decent, bright, and 
thoughtful, and secondly, that ''for the last 15 years he has not shown 
an ideology and agenda he is going to push."

But, the only way an abortion rights supporter can support Alito is to 
take a very broad view -- that the Supreme Court, even with Alito on it, 
is not going to simply overturn Roe. Abortion rights advocates label 
that wishful, risky thinking, especially since the abortion battlefield 
is currently focused more on curtailing access than the outright 
overturning of Roe, and Alito has shown a willingness to curtail. But 
the rationale allows someone to support Alito for other reasons.

What might those other reasons be? Perhaps that Alito is intelligent, 
qualified and personifies a president's right to pick a nominee who 
reflects his ideology.

However, that analysis overlooks the elephant in the room, what Senator 
Tom Coburn, Republican of Oklahoma, acknowledged in his opening 
statement: ''The real debate here is about Roe," said Coburn, an 
abortion opponent. ''We're going to go off in all sorts of directions, 
but the decisions that are going to be made on votes on the committee 
and the votes on the floor is going to be about Roe."

Pro-Roe and pro-Alito? It doesn't add up. But that's politics.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/15/pro_roe_and_pro_alito/
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