President Bush's nomination of John Roberts has begun the next great battle over a Supreme Court nominee, and predictably the key issue will be what the various activists view as Mr. Roberts position on Roe v. Wade. This is an unfortunate result of the court's poor decision in the Roe ruling that "found" a right to privacy in the constitution on which they could balance their personal preference to give women "reproductive rights".
The Roe ruling has polluted the Supreme Court nomination process since, and resulted in the awful hearings that surrounded the Bork and Thomas nominations, as well as some of the early pronouncements on the Roberts nomination. It is instructive to see the differing degrees of respect that nominees have received in the Senate from liberals and conservatives over the years. Very liberal nominees such as Ginsburg and Breyer have been accorded respect from conservatives and received approval on a near unanimous basis, while very conservative nominees have been smeared by the liberal propaganda machine.
There is a good reason for this. Liberals recognize that in our republic, controversial rights that are "found" by the court have an extremely precarious position in jurisprudence. As a result, the only way to defend these rights is to defend them through the mechanics of the judicial nomination process. This, of course, is contrary to the proper means established by our constitution which dictates that rights be accorded through the constitution, and that when necessary, amendments be made to expand the rights of the governed. In this way only, can every citizen feel that they have had their thoughts heard and valued. It is a messy process which ultimately leads to negotiation and compromise, but ultimately it the best means by which we can achieve an agreed upon status quo. Ruling by judicial fiat, which is effectively what Roe did, results in one side feeling aggrieved and is the catalyst for the seemingly endless battle that we've experienced for the past three decades.
For this reason both liberals and conservatives should support the overturning of Roe. I've linked this post to the Functional Ambivalent's post today where he makes the liberal case for overturning Roe. As the FA points out, once this is done the legislative process will kick into high gear, much as has occurred in the case of the recent Kelo decision. The process will be messy, but in the end each state will arrive at a balanced compromise which its citizens can abide by with regards to reproductive rights. More to the point, liberal states such as New York can pass laws without interference from more religious states such as South Carolina, and vice versa.
Here is the kicker. This is the point that conservatives have been making for years. Rather than listening to our argument, liberals have accused us of wanting to "steal women's wombs" and other non-sensical arguments. While there are certainly those that have supported the overturning of Roe because of their desire to outlaw abortion, the conservative view of this controversy has developed based on our views of the best means for ensuring our rights, and providing for reasoned judicial nominations and confirmations.
Adherence to proper legislative process is the best, and only way to properly safeguard our rights as citizens. I'm heartened to read a unapologetic liberal get this correct for a change. It also makes me wonder, is the Functional Ambivalent becoming a conservative without realizing it?
Shhhhhhhh don't tell him.