The Right Coast

November 20, 2005
Lithwick lays down gauntlet to conservative bloggers
By Tom Smith

This is interesting. It does raise the question, what should conservatives and Alito say about Roe v. Wade. It seems a bit like Lithwick wants conservatives to play the role of that big galoot in the famous knife fight scene in Butch Cassidy and the Sundance Kid. It's for us to stand up and say, "Rules? In a knife fight?" Liberals get to play Butch.

Here's a hard question. Suppose the Supreme Court invents some law in the most intensely fraught field imaginable, one that goes to the heart of issues such as the right to live and the right of a person to control her own body, and the occassional conflict of the two. Base the decision on reasoning that would get an F in a logic class and a mere "low pass" at the Yale Law School. Now let this legal terategen work its way into the fabric of constitutional law for three decades. Now ask a conservative what to do about it. What aspect of the rule of law is more important-- respect for constitutional law precedent or respect for the original meaning of the constitution? Or put another way, which of your children do you want to hand over to the Nazis, Sophie? But wait, we're not done yet. Let's have that discussion in front of, and under the good faith moderation of such giants as Senators Kennedy, Leahy and Biden. Not to mention the fair-minded press, and the calm, soothing balm of our constitutional law scholars.

I don't recall any conservatives saying the White House was dodging a debate in nominating Miers, so much as dodging a fight. There is a difference. Not that this fight should have no rules. So, for example, I now acknowledge no purpose is served by remarks, such as I wanted nominee Thomas to make, along the lines of, "Let me get this straight, Senator Kennedy -- you are saying I hit on my assistant, as opposed to say having sex with her on the beach, getting drunk, driving her off a bridge, leaving her in the ice cold water to drown, and then getting my family's lawyers to fix it up for me?" But I thought "high tech lynching" was fine, indeed, apt.

So, I think it is fair for the Democrats to use Alito's 1985 memo against him. It's also fair for Alito and the White House to play it down as best they can. It's not a knife fight. But neither is it beanbag.