Posted on 11/03/2005 4:51:00 PM PST by wagglebee
Supreme Court nominee Samuel Alito told a key Democrat that he wrestled mightily with a 1991 opinion favoring an abortion restriction that has become a centerpiece in the debate over his confirmation.
Sen. Richard J. Durbin of Illinois, a member of the Judiciary Committee, told the New York Times that in a private meeting he had asked Judge Alito about his dissent in the appeals court case Planned Parenthood v. Casey.
The case was a challenge to a Pennsylvania law requiring married women to notify their husbands before seeking an abortion. The majority opinion struck down the restriction. Alito, in dissent, would have upheld it.
"He said he had spent more time worrying and working over that decision than over any other decision he made when he was a judge,” Sen. Durbin said.
But Durbin said Alito had told him that he hadn’t attempted to address the broader subject of abortion, but instead had struggled to interpret Justice Sandra Day O’Connor’s opinions about prohibiting an "undue burden” on a woman’s right to have an abortion.
"He said it happened in the first year he was on the bench, and he said it was a tough decision to write because he had to decide what was an ‘undue burden’ on a woman seeking an abortion,” Durbin told the Times.
"I told him I was glad to hear that because when I looked at it I struggled with how he had come to that.”
Durbin's true struggle should be with his own conscience, and how he has shamelessly changed positions on this over the years.
Can't even Newsmax give the WHOLE story about the "Other Options" available for a "married woman" in this situation, i.e. her husband beats her, it was a rape, etc....???
What Alito said:
"I spent more time thinking about where my pencil was so I could get on with writing that decision..."
What Turbin heard:
" I spent more time thinking...on...that decision..."
I don't trust Alito; he sounds like another Anthony Kennedy. There should be no struggle in finding that an abortion restriction is constitutional, as there is nothing in the Constitution prohibiting states from restricting abortion. Plus, it turns out he has voted to strike down abortion restrictions. Isn't there anyone in the Bush administration who reviews judicial nominees' records?
That was not the situation here. The struggle existed because Alito, as a judge on a lower court, had no choice but to work within the framework given him by the USSC. That framework said that any "undue burden" imposed upon a woman towards getting an abortion was unconstitutional. In his dissent he tried to argue that the restrictions in the Pennsylvania law did not impose any such "undue burden".
What?
In all seriousness, I've felt stupid for many years for not understanding this "undue burden". I'd always chocked it up to a background in engineering rather than law.
That a brilliant legal mind like Sam Alito has struggled with it has me feeling prett - tty vindicated right now.
It would be ironic should Alito prove more liberal than Miers.
It's a good thing he worked hard on that dissent. Rehnquist liked it so much he cited it in his own dissent.
And legal scholars recognize it as a sign of his brilliance in distinguishing himself from O'Connor, the justice he has been nominated to replace.
I wonder if appeals-court judges who find themselves in disagreement with controlling higher-court precedent ever decide among themselves who's going to write the dissent while the other two write a very bland opinion they don't actually agree with but that submits to the controlling higher-court precedent? Having to play such games would be annoying, but a dissent that's much better-reasoned than the majority opinion will have more persuasive weight in many contexts than even a unanimous decision which goes against higher-court precedent and is consequently struck down.
LOL!
And, who in the world believes Turban Durbin? Why is he leaking a private conversation? Is he wearing a sign saying "Don't Ever Trust Me?"
He is already not trusted, just in case he needs reminding.
The "undue burden" standard articulated by O'Connor in the 1989 Webter case and re-articulated in the 1992 Casey case isn't brilliant at all, it's just incredibly murky. O'Connor is a muddled and inarticulate writer. Quite the opposite of our nation's admirably clear and direct founding fathers.
Except I don't think even dissents ever directly contradict the precedent established by a higher court.
I don't trust Alito, either....and I don't trust Bush's judgement (notwithstanding his picks of less powerful judges on lower courts).
This is his third SCOTUS nomination and he STILL cannot find it in his heart to choose someone who we KNOW would vote to overturn roe.
What fries me is that there are soooo many excellent judges out there about whom we know soooo much.
At this point, I don't think BUSH would vote to overturn roe (notwithstanding his comments re a "culture of life").
The Supreme Court had already ruled otherwise and that is the framework in which a federal judge in a lower court has to go by. If a person can't work within that framework, then he should find another line of work.
I agree that even dissenting judges are unlikely to go out on a limb and say that higher-court judges are boneheads (though I'm sure some probably think that). On the other hand, dissenting judges can go further in that direction than can judges writing controlling decisions (at least in places other than the Ninth Circuit).
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