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Patterico’s Pontifications - Alito’s Dissent in Casey
by Decius at 4:37 pm EST, Oct 31, 2005 |
Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions “‘to some degree’” or inhibiting “some women.” Looking at previous restrictions that Justice O’Connor had approved, which “almost certainly were substantial enough to dissuade some women from obtaining abortions,” Judge Alito wrote that “it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.”
A number of liberal sources are in full "screaming bloody murder" mode over this guy. I don't get it. I don't see the fire. This is not Janice Rogers Brown. I don't think the above line of reasoning in unreasonable, for the exact same reason I don't think the 9th circuit was being unreasonable when they struck the pledge requirement. These guys are responsible for applying precident. They are not responsible for reaching the outcome you'd prefer. If you don't like the outcome, you should pressure the legislature unless you can demonstrate that the judge is unreasonable. I haven't seen one commentator argue that his reasoning is flawed or unprofessional. They seem focused on results, not how they were reached, and that seems like so much political bullshit. If the left really has a problem with this guy they are going to have to provide an explanation that has meat. Until such time my official position on this nomination is: "Did you expect a Republican controlled government to nominate a liberal?" |
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RE: Patterico’s Pontifications - Alito’s Dissent in Casey
by k at 11:10 pm EST, Oct 31, 2005 |
Decius wrote: Judge Alito wrote that “it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.”
I don't think the above line of reasoning in unreasonable, for the exact same reason I don't think the 9th circuit was being unreasonable when they struck the pledge requirement.
That's fine, but recognize that you're effectively saying that the wife of an abuser will be breaking the law if she decides that such a man shouldn't be raising a child. I'm not saying this should ever happen, but I think it's safe to say that it does, and I continue to believe that it's not my place, even as a husband, to *require* my wife to do goddamn anything. I'm not saying a healthy relationship doesn't involve mutual trust and obligation, but I'm saying you can't legislate that. If it doesn't exist, it makes no sesne to penalize the woman further. Also, this is predicated on the assumption that lots of women are willy-nilly aborting fetuses without telling their husbands, when I'd bet the reality is that this pretty much only happens in situations where the husband is abusive or otherwise incompetent. He's saying, above, that that's not the case, but I don't really buy that. Would I be pissed if I was in a good marriage (or thought I was) and found out my wife had done this? Sure, but that's between us, and the law should have fuck all to do with that. If the left really has a problem with this guy they are going to have to provide an explanation that has meat. Until such time my official position on this nomination is: "Did you expect a Republican controlled government to nominate a liberal?"
The logic of your response is flawed. You should certainly expect people to support their assertions, but just because I expected to get punched in the face doesn't mean I don't get to react to it. Of course we expected a conservative nominee. Are we supposed to be happy about it? |
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RE: Patterico’s Pontifications - Alito’s Dissent in Casey
by Decius at 2:16 am EST, Nov 1, 2005 |
k wrote: That's fine, but recognize that you're effectively saying that the wife of an abuser will be breaking the law if she decides that such a man shouldn't be raising a child.
I most certainly am not. You seem to fall into the trap I'm complaining about. To begin with, although it is totally irrelevant, this is a notification requirement, not a consent requirement. Furthermore, it contains exceptions in the event the wife beleives she may be physically abused as a result of the notification. Nothing about this law can possibly create a scenario where "the wife of an abuser will be breaking the law if she decides that such a man shouldn't be raising a child." This law can only create a scenario where the wife of a psychological abuser will be breaking the law if she decides that such a man shouldn't be raising a child but doesn't inform him of her decision. I don't beleive that the exceptions in this law are comprehensive enough to call the legislation sound. However, none of this matters. It isn't really about whats a good idea and whats a bad idea. Its about what power an appellant judge has in relation to the constitutionality of this law. The question is whether the problems with the exceptions in this law are enough grounds for the an appellant court to overrule the legislature. Alito offers a persuasive reading of the binding precident indicating that it is not. He specifically states while doing so that the law is questionable. Its not his place to arbitrarily decide what he likes and doesn't like, or to rule outside the scope of what he honestly thinks supreme court precident indicates, even if he really really doesn't like the result. To call him a bad lawyer because he did not feel it was within his power to strike down this legislation requires an arguement that is rooted in his reasoning about his power to strike down the legislation and not an arguement that is rooted in the reasonableness or unreasonableness of the legislation per say. That is an arguement I've yet to hear, and thats what I'm complaining about. You can't legislate that.
No, you can't, but your anger about that ought to be directed at the legislature. The logic of your response is flawed. You should certainly expect people to support their assertions, but just because I expected to get punched in the face doesn't mean I don't get to react to it. Of course we expected a conservative nominee. Are we supposed to be happy about it?
Certainly not, but the question is whether you are going to go guns to the wall on this. To read the Kos today you'd think this guy cooks and eats minority children for dinner. What if you succeed and defeat him? Is there someone palitable to the Republicans that you would prefer they nominate? From what I know at this point most of the popular choices are much worse. |
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