First, this decision proves decisively that no nominees to the Supreme Court should survive the confirmation process without voicing definitive and honest answers to their positions on significant constitutional questions. Carhart lifts the gossamer cloak of inviolability judicial nominees and their political parties have used to prevent opponents from divining a nominee's position on tough issues. Most recently, nominees have bobbed, weaved, dodged, and danced around their positions on Roe v. Wade, the decision which legalized abortion on a national scale in the early 1970s.
Chief Justice John G. Roberts, in his Senate confirmation hearings, would say little more than that he would uphold the Constitution (whatever that means) and that the Supreme Court was no place for ideologues. Yet on each decision that has come before the court in his brief tenure, he has sided squarely against the right to privacy and for the invasion of religious morality into the legal system.
Justice Samuel Alito was only slightly more forthcoming during his confirmation hearings on what has become his stalwartly antiabortion stand:
"But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be re-examined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect...then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."
What is perhaps most troubling about Carhart is that the opinion by Justice Anthony Kennedy, joined by Alito and Roberts, gives the court the power to base decisions on moral grounds: "The government, can use its voice and its regulatory authority to show its profound respect for the life within the woman."
Dissenting Justice Ruth Bader Ginsburg noted how unusual and off-course this injection of morality into law is for the Supreme Court when she wrote, "Ultimately, the Court admits that 'moral concerns' are at work, concerns that could yield prohibitions on any abortion. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent."
Conservative appointees have historically abhorred judicial activism and barred government intrusion into citizens' private lives. They have instead embraced so-called strict constructionism. But in this new era of conservative activism and use of personal morality as a basis for constitutional intrusion, it seems ever more important that senators must be given a clear view of a judge's thought before confirming him or her to lifetime tenure on the nation's most powerful court.
By Bonnie Erbe