Durbin evolution on decency

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If the Supreme Court continues using "evolving standards of decency" to interpret the Eighth Amendment, it may soon declare it cruel and unusual punishment to subject double-talking politicians like Sen. Dick Durbin, Illinois Democrat, to questioning by Tim Russert, host of NBC's "Meet the Press."

Mr. Russert put Mr. Durbin on the rack last Sunday, torturing the poor man with his own contradictory words.

When first elected to the U.S. House, you see, Mr. Durbin was pro-life. Now, as a pro-abortion member of the Senate Judiciary Committee, he is expected by left-wing groups to enforce his party's pro-abortion litmus test for Supreme Court nominees. With the nomination of Judge John Roberts to replace retiring Justice Sandra Day O'Connor, Mr. Durbin shows every sign of living up to those expectations.

Back in 1983, as Mr. Russert noted, Mr. Durbin "believed that Roe v. Wade was incorrectly decided" and supported "a constitutional limit to ban all abortions." Mr. Durbin, Mr. Russert said, wrote to a constituent: "The right to an abortion is not guaranteed in the U.S. Constitution." Mr. Durbin did not contest Mr. Russert's characterization of his former pro-life, anti-Roe views. "I'll concede that point to you, Tim," he said.

In 1983, it should be noted, Roe was 10 years old, and Rep. Durbin was a 39-year-old Georgetown Law School graduate with many years of legal and political experience. In 1973, when Roe was decided, he served as legal counsel for the Illinois Senate Judiciary Committee. From 1978 to '82, he was an associate professor of "Medical Humanities" at Southern Illinois University School of Medicine.

It ought to be reasonable to assume that as a legislative lawyer and medical school professor, Mr. Durbin came to his anti-Roe views thoughtfully. He may have read then-Associate Justice William Rehnquist's devastating rebuttal of Roe's unsustainable claim the Fourteenth Amendment created a right to abortion.

When the Fourteenth Amendment was ratified, wrote Justice Rehnquist, 36 states' laws restricting abortion were left undisturbed. "Indeed," Mr. Rehnquist said, "the Texas statute struck down today was, as the majority notes, first enacted in 1857 and 'has remained substantially unchanged to the present time.' There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted."

What changed Mr. Durbin's mind about the meaning of the Constitution?

On "Meet the Press," this is how Mr. Durbin explained his conversion: "You know, it's a struggle for me. It still is. I'm opposed to abortion. If any woman in my family said she was seeking abortion, I'd go out of my way to try to dissuade them from making that decision. But I was really discouraged when I came to Washington to find that the opponents of abortion were also opponents of family planning. This didn't make sense to me. And I was also discouraged by the fact that they were absolute, no exceptions for rape and incest, the most extraordinary medical situations. And I finally came to the conclusion that we really have to try to honor the Roe v. Wade thinking, that there are certain times in the life of a woman that she needs to make that decision with her doctor, with her family and with her conscience, and that the government shouldn't be intruding."

This is not only devoid of constitutional reasoning but of all reasoning. Mr. Durbin effectively argues: Because some pro-lifers don't believe in family planning or rape or incest or other exceptions, the Constitution guarantees a right to abortion.

Truly, nothing any pro-lifer can say, do or advocate can change the fact the Constitution, as written and ratified, does not prohibit states from restricting abortion. Mr. Durbin might as well say: Some pro-lifers root for the Dodgers, therefore the Constitution guarantees a right to abortion.

As it is, Mr. Durbin told Mr. Russert it "would trouble me greatly" if Judge Roberts took the same position today -- that states can restrict abortion -- that Mr. Durbin correctly took in 1983 and has since abandoned.

An activist, but fair, interpretation of Mr. Durbin's appearance on "Meet the Press" is that Mr. Durbin's career as a professional Democrat has groomed him to fight the confirmation of any justice he suspects harbors the same constitutional convictions he himself brought to Washington 22 years ago.

It's too bad President Bush and his nominee are taking such a stealth approach to the confirmation process. If Judge Roberts is indeed a strict constructionist, and as brilliant and persuasive as reputed, he might do an even better job than Tim Russert of exposing Mr. Durbin's double-talk. He could change hearts and minds -- not to mention how we confirm justices to lifelong tenures on our highest court.

Terence P. Jeffrey is a nationally syndicated columnist.