Catholic commentary on culture, media, and politics.

Wednesday, November 02, 2005

How pro-life is Samuel Alito?

A bit o' the shine is already fading from the armor of Supreme Court nominee Sam Alito. His four big abortion rulings make one wonder what the liberal Democrats are table-thumping about. Most disturbing to pro-lifers is this one:

• A 2000 challenge to New Jersey's ban on so-called partial-birth abortions. Alito struck down the law based on a recent Supreme Court decision.


Blogger PMC said...

No, no concern there. You need to read the actual decisions, especially the partial birth abortion case and Alito's concurrence, before jumping to conclusions based on incomplete media accounts. In the PBA case, for example, the 3rd Circuit's hands were tied because the Supreme Court had just struck down an identical statute in the infamous Stenberg v. Carhart decision. Alito, and every other judge on the 3d Circuit, is bound by oath to follow authoritive decisions of the Supreme Court. He had no choice (other than resignation) but to vote to strike down the NJ statute. Justices on the Supreme Court, OTOH, are not legally bound to follow their own precedent, so a justice has greater leeway to try to revisit prior bad precedents.

3:43 PM

Blogger Patrick said...

Thanks for joining in, but I'm not *jumping* anywhere. My post had to do with perceptions by liberals on cases that suggest, inter alia, ambiguity as to Judge Alito's personal pro-life commitment.

Alito's berth on the 3rd Circuit, specifically his lock-step validation of the Supreme Court per Stenberg, brings up the question of ultimate commitment. "Authoritative"? He "had no choice"? I described Alito's part in striking down the ban on partial birth abortion "troubling" to pro-lifers. I stand by the adjective.

When the Church holds up St. Thomas More as a model for sanctity in the legal sphere, I think we should take the mimetic implications seriously. Most judges today are not in danger -- yet -- of facing beheading for a stand on principle. More's moral hotseat involved divorce and remarriage; Alito's, the skull-puncturing and vacuuming out a baby's brains while still in his mother's birth canal.

If the case involved murdering, say, homosexuals or black people, it's safe to say most Catholic judges would quit rather than materially participate in grave evil.

I agree that conservative jurisprudence will ultimately get us closer to overturning Roe and letting the States decide, but, IMHO, along the way, deals are made with the devil, ie Santorum lock-stepping with Bush in supporting Specter/snubbing Toomey.

4:15 PM

Blogger PMC said...

He "had no choice"?

No, no choice other than resignation, as I wrote. St. Thomas More is a good example. He's not the patron saint of lawyers for nothing. He didn't defy the law. Rather, he resigned the chancellorship rather than accede to Henry's claim as supreme head of the Church. More did not try to change an unjust law by himself or by fiat.

Likewise, Alito could not take the law into his own hands and disregard the Supreme Court's reprehensible Stenberg decision, which is "authoritative" in the sense that it is the last word on the law in this area for the time being. Alito's only moral option, other than following its dictate and voting to strike down the NJ statute, was to resign. Alito did not "validate" anything; he followed the law, as a judge is obliged to do.

I would have respected him immensely had he resigned, but I will not condemn him for what may very well be the wiser choice: following the law as currently handed down from the Supreme Ct, and taking opportunities to present opposing views when they've presented themselves (as in his opinion in Casey v. Planned Parenthood) and effect positive changes in the law incrementally.

Scalia wrote a pretty good exposition of this subject in re capital punishment in First Things. Have you by any chance ever read it? You may not agree with his analysis, but it's a learned essay and a good read.

7:04 PM

Blogger Patrick said...

I'm not really strongly disagreeing with you. The wicket in this legal arena is sticky indeed for faithful Catholics in the profession. Judge Alito, I'm sure, is a good man trying to negotiate his way through his duties without losing his soul while following the law as is his duty as a judge.

But according to John Paul II, not all human laws are "real" laws, in the sense of binding on consciences. He could have stepped down rather than participate in the NJ strike-down. I think God would have bless such a courageous move. I wonder, too, whether signing onto the Supreme Court's decision per Stenberg v. Carhart made for any sleepless nights, given what partial birth is, and does. (Alas, having no formal legal training, I am at a disadvantage re: debating the history and the nitty-gritty of the legal system in the matter.)

I do remember reading the Scalia piece in First Things, although the minutiae have faded. I also recall that he got the better of Archbishop Chaput (a man I have met briefly and admire) on the issue of Catholic jurists in a public disagreement about captial punishment vis a vis Catholic judges.

I know you're not equating partial birth abortion with the death penalty, the former being intrinsically evil. Right?

7:30 PM

Blogger PMC said...

I know you're not equating partial birth abortion with the death penalty, the former being intrinsically evil. Right?

Right. Only noting that issue was Scalia's focus in his essay, which I've found again here:

I'd forgotten about the little dust-up with Abp. Chaput, a good man. Was this article possibly the provocation? I think it may have been, and if memory serves, Chaput may critized Scalia's position, w/o fully understanding the implications of the contrary position that he put forth. But I may be mis-remembering...

8:08 PM

Blogger Patrick said...

Yes, I think the FT piece was the gauntlet throw-down. The Archbishop took then Scalia to task for being like those who dissent from Humanae Vitae. Scalia had, you might recall, written that Catholic judges who reject the death penalty in principle ought to recuse themselves from cased involving its application. I think that's what set off His Excellency.

But Justice Scalia's rebuttal was solid and proved that archbishops are not infallible when it comes to legal argumentation. I say that as a fan of Chaput and leaders like him.

Thanks for the essay by Scalia. The newest FT arrived yesterday, though, and I'm chewing up Cardinal Dulles' essay on whether the Old Covenant is obsolete. I'm at the depressing age when it dawns on you that you can't possibly read even all the GREAT books in one lifetime let alone the very good ones.

9:28 PM


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