Truth Hurts

A case study in rightie “logic” — Captain Ed writes that “Alito blew Chuck Schumer out of the water on abortion.” Here is the section of Senator Schumer’s questioning to which the Captain refers.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That’s in the First Amendment.

SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”

He said, “Well, I’m now married to her daughter for 21 years, not one year.”

I said, “No, no, no. Do you still hate your mother-in-law?”

And he said, “I can’t really comment.”

What do you think I’d think?

ALITO: Senator, I think…

SCHUMER: Let me just move on.

Just who blew whom out of the water? I think your answer depends on your values. If you value honesty; if you value liberty; if you value the principle that We, the People, rule this country — Schumer wins. If, instead, you value raw power and winning at any cost — Alito wins.

It’s obvious to everyone on both sides — although not to most reporters — that Alito is evading questions. There is only one reason he couldn’t give Senator Schumer a yes or no answer — he doesn’t want the Senate, and the nation, to know what he really thinks. Certainly a nominee shouldn’t answer questions about cases that might come before the bench. But let’s look at how Ruth Bader Ginsburg handled similiar questions [PDF]:

Senator Leahy [D-Vt.]:
Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?

Judge Ginsburg:
There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone.

The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one’s life course.


Judge Ginsburg:
[Y]ou asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.

Now, is there any question about what Ruth Bader Ginsburg thought about a woman’s right to choose an abortion? On the other hand, all we get out of Alito is, in effect, It depends on how you interpret the Constitution, but I have an open mind.

Sure you do, son. And I’m Queen Victoria.

The PDF document I cite above as a reference to Ginsburg contains more quotes relating to the infamous Casey v. Planned Parenthood decision, in which Judge Alito played a part. If you compare Ginsburg’s views on Casey to Alito’s, it is obvious that their ideas on what “privacy” actually means — indeed, on what liberty and personal autonomy actually are — are worlds apart. Alito may say he supports a “right to privacy,” but clearly there should be big, prominent warning labels on that assertion — restrictions may apply; void where prohibited.

I’ve written in the past that, IMO, the notion the Constitution does not protect a right to privacy (because, you know, the word privacy just isn’t in there anywhere) misses the whole meaning and purpose of the American Revolution and Bill of Rights —

… the Constitution recognizes all kinds of rights to be “left alone by the government.” Roe v. Wade argues that the First, Fourth, Fifth, Ninth, and Fourteenth Amendments put together protect a right to personal privacy, and that this right had already been recognized by many prior decisions. I’ll paste a part of the Roe decision explaining this at the end of this post.

But for the moment let’s step away from examining clauses under a microscope and look at the bigger issue of political liberty. The whole point of it, and the raison d’etre of the Bill of Rights, is the notion (revolutionary in the 18th century) that citizens of the U.S. were not subjects whose lives and property could be messed with on the capricious whims of the sovereign. The underlying philosophy of our government is that citizens are to be free of interference by government unless government has a compelling reason to countermand the free will of citizens. And even then, government must jump through various hoops–the due process of law thing–before requiring a citizen to do something he or she does not want to do.

You know how it is with righties — they like to talk about freedom, but really, to them, freedom’s just another word. And it’s a word that applies only to them and their agenda. They don’t mean for the rest of us to have it.

Update: See Scott at Lawyers, Guns and Money.

6 thoughts on “Truth Hurts

  1. All good minded folk don’t worry about consequences when they beleive rules and restrictions do not apply to them. They have not been touched, as you mention, by the misuse of power or the misguided good efforts of folks that feel they have the best of intentions at heart….

  2. The righty bloggers are full of nonsense; Schumer clearly won, because Alito was evasive and just plain didn’t answer two interrelated questions (whether the Constitution provides a right to choose and whether it’s okay to overturn precedent, particularly since Alito’s record indicates he’s not afraid to do so) but, by contrast, Alito freely answered in plain terms the easy question. The only conclusion is that Alito doesn’t want us to know what his opinion on abortion is. Why else would he hedge like that? I don’t see how this is a victory for Alito, it just makes him look cagey. And I think that would be equally true if Schumer was asking his opinion on what color the sky is.

  3. I believe , maha, you are 100% correct about scalito. Every point you made has been right on the money, and if one tried one could pick many more points against him that would also be valid, but let me ask you this: Lets say for a second the senate agreed with us and refused to confirm alito,,then what?DO you think bush will nominate anyone better?Maybe worse? Are we really expecting any justice from anyone bush puts forward?

    I want the good guys to win here as badly as anyone but to what end?Lets face it, the republican senate would rubber stamp the grand wizard of the kkk if bush nominated “it” and rather then ask the grand wizzard questions they would spend their time defending the noimation.And bloggers like captain ed would trip overthemselves to say the nominee was wonderful.

    There is not going to be any justice here, whether this jack ass is installed or not, because if this one doesn’t make it, Bush has a potentially WORSE one to put in his place, maybe he would nominate brownie next ,, he does a heck of a job , you know.

    I think we should turn off the life support on our rights and freedoms , because they are dead.All we can do now is move forward.

  4. Freedom and restrictions thereof mean different things to righties and lefties, because righties and lefties have different views, visions actually, of morality.

    Righties are obsessed with private morality, lefties with public morality. Righties care about that fetus you’re carrying or who you sleep with. They could care less that we’re bombing the bejesus out of some third world country, or that polar bears are dying because of global warming. You’re completely free to pillage the rest of the world, but you better behave at home.

    Lefties care about what we’re doing on the other side of the globe, because we know it comes back to us eventually – we intrinsically understand that there is a law of karma at work. Lefties could care less about who you’re sleeping with.

    This is why righties can’t stand socialism, they see it as restricting their freedom to operate as they will in the public domain, in one breath, and in the private it’s, shudder, Godless – you can do anything you want at home. Too much freedom for them, in the private sphere.

    The righties idea of morality is tribal and fear based, looking up to the alpha male for protection – our God, our Father will take care of us, if we behave. And to hell with those who aren’t part of our tribe. And they project this out onto everyone, they think everyone else is out to take what they have, which they use to justify their own acts of aggression. It’s all based on fear.

    The lefties idea of morality is modern and rational, it attempts to understand the whole world as a system, that what we do over here eventually feeds back to us here. Not everyone in the world operates this way – there really are people who want to take what we have – but it’s the only hope for a humane and peaceable world. It’s based on love.

    Fear constrains vision, love opens it. It comes down to what Einstein called the only important question, whether the universe is friendly or not. Righties believe it isn’t, lefties believe it is.

    The right believes in the power of the strong alpha male – this is what Alito’s views are all about. By contrast, the left believes in the power of We the People, which was a radical idea in the 1700s, too radical for the regressive right of today.

  5. does alito like eggplant?

    The good Senator Graham from South Carolina jerks tears from Sammy “The Sphincter” Alito’s chattel wife by apologizing for having to answer tough questions from Democrats. So, is he a closet bigot? His family knows. I’d lay 8-5 that over the course of their lives, his collective family has uttered “moolie” more than the GOP would like to know. But, what the heck, he was otherwise raised well, right?

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