Tara RossAre Pro-Lifers Unfit for the Court?

Tom commented, below, that the Samuel Alito nomination is “all about abortion.” It certainly seems to be. As I’ve been watching television commentators in recent weeks, I keep wondering if liberals are honestly trying to make the point that pro-life judicial nominees should not be confirmed to the Court.

Of course, part of the problem is that commentators can be sloppy and imprecise in their language, and they often do not distinguish between a judge’s personal views and his judicial philosophy. However, some commentators truly seem disturbed at the mounting evidence that Alito may be personally pro-life.

Let’s assume for a minute that Alito is as staunchly pro-life as his opponents fear. Do they expect us to believe that every single pro-life citizen in this country is automatically ruled out for judicial positions, regardless of their legal qualifications? Such a stance would rule out between 1/3 and 1/2 of the American public (depending on which poll you believe). I refuse to believe that such a sizable component of the American public can honestly be deemed “so out of the mainstream” that one of its members can’t be nominated to a position on the bench.

Moreover, Alito’s personal views on abortion are completely and utterly irrelevant. The more important questions are whether Alito has a judicial philosophy of originalism and whether he can fairly apply the law, even when it leans against his personal preferences.

Alito has repeatedly proven that he can do just that.

A November 11, 2005 , report of the L.A. Times noted four abortion cases that were heard by Alito during his tenure on the Third Circuit. In three of these cases, Alito ruled in a manner that does not accord with a pro-life viewpoint. In one case, he did. But liberals blithely dismiss this fair and equitable judicial track record, instead pointing to a 1985 statement that Alito made on a job application. Alito’s 1985 statement was an apparent reference to Thornburgh v. American College of Obstetricians and Gynecologists, a case in which the Reagan administration argued that Roe v. Wade should be overruled. Alito was apparently proud of his work in this case.

So what’s the big deal?

It is politically incorrect to say so, but Roe was not particularly well reasoned. Many pro-choice jurists, including liberal Justice Ruth Bader Ginsburg, have freely acknowledged this simple fact. If a right to abortion exists, it is most certainly not for the reasons enunciated in Roe. Alito’s 1985 statement should not undermine his 15 years of demonstrated impartiality on abortion issues while serving as a Third Circuit Judge.

Alito has proven, repeatedly; that he will do his best to fairly interpret the law. His personal pro-life views should not be used as a reason to automatically disqualify his nomination.

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