Sometimes I think that I live in the most ridiculous city in the world. Think back to the confirmation hearings of federal appeals court Judge Samuel A. Alito. During one round of questioning, the ever-honorable Sen. Ted Kennedy pulled a McCarthy and baselessly accused Judge Alito of being a racist, sexist bigot. Sen. Kennedy then threw a temper tantrum when committee chairman Sen. Arlen Specter refused to allow him to hijack the committee. Meanwhile, Judge Alito's wife was forced to leave the room in tears after witnessing such an embarrassing insult to her husband's character.
I seriously doubt that anyone honestly expected much in the way of useful information to come out of these confirmation hearings, but that does not excuse such classless grandstanding. Of course, Judge Alito was not going to give direct answers as to how he would rule on cases. Doing so might very well have endangered his confirmation and compromised the impartiality with which he should approach cases before him.
Regardless, I do not think that it is too much to expect more of the senators on the Judiciary Committee. For instance, Democrats spent more time trying to force Judge Alito to admit to wanting to overturn Roe v. Wade than questioning him as to the competing jurisprudential arguments for and against such a decision. Why? Probably because they already know the answers.
Roe v. Wade relies heavily on the idea of penumbral rights - those that are not explicitly listed in the Constitution but appear to coincide with the spirit of those rights that are explicitly listed. In an intellectually honest confirmation hearing, senators would have asked Judge Alito to explain this line of reasoning. Senators should then have asked him to explain the originalist line of reasoning that since they are not explicitly listed, abortion and privacy rights are matters for the people and their state legislatures to debate per the Tenth Amendment.
Of course, Democrats likely already understood both arguments and would just as soon not have had the public hear Judge Alito explain them. If he had been given the time to explain the originalist line of reasoning, then maybe the public would have realized that the Supreme Court could overturn Roe v. Wade without significantly changing abortion rights. After all, overturning Roe v. Wade would not outlaw abortion; it would simply allow state legislatures to outlaw it if they so chose.
More than likely, however, very few states would ban abortion outright, even those whose legislatures are dominated by Republicans. A clear majority of Americans support access to abortion in at least some circumstances, and few Republicans would be willing to alienate so many voters. What state legislatures probably would do, however, is enact common sense restrictions such as parental notification laws that most Americans think are reasonable and that do not place an undue burden on a woman's ability to get an abortion.
If such limitations and restrictions are the most that will come from overturning Roe v. Wade, then Democrats should not be so opposed to having the discussion. In fact, the ensuing debate over those limitations and restrictions would probably be good for Democrats politically, since they would likely pick up seats in state legislatures unless Republicans moderated their stance on abortion. Of course, Republicans could also cement their majorities by steering a middle course, so overturning Roe v. Wade would be a risky proposition for both parties.
Perhaps more important than nudging either party in either direction, however, is the fact that overturning Roe v. Wade would permit a more democratic discussion of abortion access. For years, this and many other political battles have been fought in the courts instead of in legislatures where they belong. Whereas an activist judicial philosophy allows judges to weigh in on any matter, regardless of how far removed it may be from the Constitution, an originalist judicial philosophy that restrains judges from deciding matters on which the Constitution is silent would leave these questions to the people and their state legislatures.
Allowing the American people this level of freedom and encouraging their active participation in important debates would be the most democratic course for our ship of state, although I doubt that any politician, Democrat or Republican, has the courage to take it.
Jonathan D. McPike is a sophomore in the School of Public Affairs and the College of Arts and Sciences and is The Eagle's politically moderate columnist.
