Wednesday, February 01, 2006

Roe v. Wade - good result, bad law

Responding to your points out of order: (side note -- the topics of this post, law, political science and Family Guy, occupy roughly 99% of my time, both now and when I was in college. Good call.)

Unitary Executive -- Actually, my understanding of the Unitary Executive Theory is similar to the one Judge Alito tried to express in his hearing. The Unitary Executive theory has little to say about how extensive the Executive power is, or if he's above the law, etc. The Unitary Executive theory (though I'll check my poli sci books tonight) deals mainly with how the Executive power is allocated within the Executive branch, i.e. to what extent the President can exert control over other members of the Executive branch.
As a for instance, under the Unitary Executive theory, Congress has no authority to establish "independent agencies" to wield Executive authority. They can provide for these groups, but under the Unitary theory, any member of these groups/commissions/boards can be fired by the President at any time for any reason, and should implicitly recognize that the authority they wield comes from the man who the People elect to be our Chief Executive.
While I'm sure many who believe in the Unitary Executive also believe the Executive power trumps the Legislative at certain times (i.e. war), the two don't necessarily go hand-in-hand. Personally, I do believe in the Unitary Executive theory but believe the Executive branch authority to be weaker than the Legislative branch, given our roots in a parliamentary system

Liberal Media Bias -- I'm not one to call everything the media do overly biased, though as a regular reader of the Washington Post I do find that, when it slants, it is more likely to do so left. But it would be just as fair to say that the Post and the Times have an elitist bias, or and educated bias, or any number of other biases. That's because the media is simply a collection of individuals, each with their own individual perspective (or bias, if you prefer). Amalgamated together, these perspectives form a journalism core that can't help but be biased in favor of others who think like them, of similar backgrounds, educations levels, and outlooks.
I don't fault them for it, anymore than you or I could be faulted for being slightly more likely, having just met two people, to prefer the one who is better educated, likes rugby and drinks beer over a dumb Californian who only eats tofu. We can't help it. I had a number of professors who did a slightly better job explaining those viewpoints with which they agreed, as opposed to others (normally, the ones with which I agreed). They were still great teachers, and I still learned immensely, but I don't think even they would deny a slight bias. It's only human.

Roe v. Wade -- Okay, before I get onto the core point here, let's clear it up again. Overturning Roe v. Wade would not, I repeat NOT, make abortion illegal. It would instead allow each state to decide that for themselves, and each state court to make a similar judgment if legislation were approved outlawing it.
With that in mind, one loses nothing by admitting that Roe v. Wade is arguably (along with Bush v. Gore) one of the most outcome driven decisions EVER. Roe basis its authority on the "penumbras and emanations" of privacy from other amendments, as though the 1st and 4th amendments emit some kind of odor that, when taken together, smells like privacy. So bad is Roe that most legal scholars don't even try to defend its reasoning -- instead they focus on the result. Fine, we Republicans did that with Bush v. Gore. But remember how angry Dems got after that decision? And to social conservatives, Roe was the legalization of murder.
Which brings us to Alito. In 2004 Republicans elected a Republican president and Republican majorities to both houses. I would say that Alito is no more conservative than Ginsberg or Breyer is liberal, and if memory serves, Republicans didn't oppose them b/c they recognized that a Democratic president and a Democratic Senate should have a wide leeway on such things.
To the extent you still believe Alito to be a "whackjob", ask yourself why so many of his collegues from the 3rd Circuit would support his nomination. Remember, they have a lifetime appointment, and no need to "lie" to keep their jobs. Is he more conservative than you would like? Sure. But if I'm stuck with Stevens, Souter, Breyer and Ginsberg, you'll have to tough it out.


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