Covering the Front and Back Pages of the Newspaper
October 30, 2005
LAW: Alito and Casey on Abortion
The buzz still seems to favor Third Circuit Judge Samuel Alito as the likely next judicial nominee. Judge Alito's not necessarily my first choice, but he'd be a good guy to go to war behind, if the Democrats prove intent on a war, which they may if they are calculating that Bush is weak and can be beaten regardless of the nominee's quality. That's not an insane calculation, although if that's the tack they take, the Democrats should realize that they are picking a fight that has at least the potential to play directly into Bush's best hope for re-energizing his base and regaining his lost momentum.
Anyway, Ground Zero in any battle over Judge Alito would be his dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, which didn't reach the more explosive question - addressed by the Supreme Court - of whether Roe v. Wade should be overruled. Instead, Judge Alito found that the Pennsylvania statute at issue was constitutional under existing standards set forth in prior Supreme Court decisions. As Patterico explains about that conclusion:
[A]s Justice Scalia noted in dissent, "the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions." In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can't blame Judge Alito for that.
(Emphasis in original).
But what's even more interesting about potentially staging a big fight over Alito's ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as "extreme," "outside the mainstream," etc. - Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn't violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that's gonna be a question that will put him in an awfully bad position.
And Karl Rove will smile.