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                                       politics + culture

Monday, January 16, 2006

the light switch

Imagine if, in 1988, after 33 years of being the law of the land...a nominee to the Supreme Court had said in his or her hearings that Brown v. Board of Education was not "settled law"...was not necessarily worthy of the assumption of Stare Decisis.

Would that nominee have been acceptable?

Of course not.

Griswold v. Connecticut was decided 41 years ago in 1965. Roe v Wade was decided 33 years ago in January of 1973, and its central holdings were reaffirmed 14 years ago in Planned Parenthood v Casey in 1992.

Millions of men and women have availed themselves of the broad right to privacy in one's personal life and health care that these decisions staked out. The decision whether or not to have a child could not be more private and personal. The nation and the state of reproductive technologies, of course, are not in the same place they were in 1965 and 1973. It is quite clear that in 2006...just as we could not countenance legal segregation in this nation again...we could never go back to the days when contraception could be outlawed and abortion deemed a crime.

Or could we?

"...certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'"

Moradi-Shalal v. Fireman's Fund Ins. Companies (1988)


If Roe and Griswold are not worthy of Stare Decisis then Stare Decisis is without meaning. Yet Judge Alito, in contrast to Chief Justice John Roberts, refuses to call Roe settled law. A vote to confirm Alito, then, is no less than a vote to dismantle the principle behind Stare Decisis and the principle at the core of the the Bill of Rights: that American citizens should be secure in our liberty against the vagaries of the political process.

Further, a vote for Alito in this context sets a precedent for any future nominee to "pick and choose" which well-established rights and liberties they do, or do not, support. Do not doubt that conservatives will use just such a rationale in support of the next nominee.

No citizen or group of citizens should have their lives jerked around by our Courts, by our President, or by our Senate in this way. That is offensive to basic American conceptions of liberty: hard won rights should not be put in doubt at the whim of this year's majority.

For all the talk in the Senate about Judge Alito's credentials, and the need, out of respect for the traditions of the Senate and the Court, to accord deference for the President's nominee, one thing has not been made clear: there are stakes even greater than the "traditions" of the Executive Branch, the Court and the Senate.

If the Senate, the President and the Supreme Court cannot defend the well-established and confirmed liberties of American citizens, if they are willing to put those liberties in jeopardy after decades in which they have been thought secure by the citizens, then our elected officials have betrayed our Constitution and the founding premise of our American experiment: that a citizen's right to life, liberty and the pursuit of happiness shall not be made subject to winds and tides of politics.

Make no mistake of what a vote to confirm Alito means.

It means that the liberty of one's person, one's privacy in the most intimate decisions about one's health, indeed, the very meaning of the pursuit of happiness for millions of American men and women, will have been put, once again, in question by our Senate, our President and in our Courts.

Does anyone doubt that we will see a rash of new legislation, initiatives and trial cases? Does anyone doubt that the Roberts court will be barraged with "tests" of its new majority? Has our Senate given a thought to the enormous real world consequences of adding Samuel Alito to the Roberts court? Have our Senators realized that uncertainty about Roe impacts the entire penumbra of privacy laid down in Griswold?

To take but one example, we can expect, if Alito is confirmed, a rash of legislation regarding citizens' interactions with pharmacists. Do we want to go there? Does the Senate have any responsibility to consider the enormous impact of their individual "yes votes" for the nation as a whole?

If we were talking about Brown, if we were talking about a nominee open to "revisiting" segregation; there would be unanimity that we as a nation have moved on. That we had put a disgraceful chapter of our history in the past. It would not be brooked.

Why, then, in 2006, is it acceptable for the Senate and this President to put in jeopardy, once again, a woman's right to choose?

What does that say about America?

Indeed, what does liberty mean if our rights can be turned "on and off" like a light switch?

3 Comments:

  • I hope you've called Feinstein. KQED broadcast a quote indicating that she's going to vote for cloture.

    By Anonymous silence, at 6:43 PM  

  • I will be calling Feinstein tomorrow in the am. She must go if she will not vote to allow a filibuster as must every "Democrat" who will not support same.

    Enough is enough the campaign to drive the Republican Party the Party of Corruption, Treason and Death from power.

    By Blogger A. Citizen, at 8:01 PM  

  • Starts right now.

    By Blogger A. Citizen, at 8:02 PM  

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