- The Washington Times - Friday, January 20, 2006

Tomorrow the most inflammatory decision in judicial history turns 33 years old. Americans still batter each other over Roe v. Wade: Supporters fret the U.S. Supreme Court may renege on a constitutional right to abort a pregnancy. Opponents are eager to make those frets come true.

Roe’s persistence as a factor in our national life tells much about contemporary cultural conditions. But, equally, it helps clarify issues like, well, doesn’t Sam Alito deserve on his merits to sit on the Supreme Court?

Current thinking is Judge Alito’s skepticism, to put it mildly, on Roe isn’t proving central in the confirmation proceedings. If Sen. Dianne Feinstein of California, one of Roe’s best Capitol Hill pals, can tell “Face the Nation” she foresees no die-in-the-last-ditch effort against Judge Alito, it seems likely the nomination will prevail — and maybe also that abortion, whether it was ever a make-or-break issue in judicial confirmations, certainly seems not to be at present.

The Roe anniversary reminds us pointedly, all the same, why judicial confirmation is one of the huge stories of our time. It’s because of the high court’s power to do exactly what it did 33 years ago — give a mere policy judgment the status of constitutional law. Not by taking the issue to the people — oh, no — but just by deciding to do it.

Roe — which overturned the abortion enactments of the 50 states and put forth a federal schema for dealing with the question — is sometimes called a “ukase,” meaning a decree by the czar, or a “diktat,” the harsh consonants signifying lofty, Prussian-like disdain for insubordination. In fact, the metaphors bear some strong relationship to reality.

Here’s this bunch of guys no one elected to anything. Some parties to a lawsuit have put before them a disputed notion, and magically, under the justices’ hands, that notion — the right to abortion — becomes law, governing how we lesser beings, we nonjustices, live or perhaps don’t live at all.

Oh, we don’t agree with the Supreme Court, whether fully or in part? Well, shut up. Such is the message supporters of Roe have worked successfully for 33 years to convey.

Congress shut up promptly enough. Efforts to reverse Roe by constitutional amendment — the most difficult way to do anything — have regularly died. It’s a shame. Congress could send the amendment to the states and let them chew it over in a legislative setting. There would be up-or-down votes. To that degree, at least the voters — a k a, we, the people — would have had some voice in the matter rather than just a signal from the high court to bow submissively.

Supreme Court intervention in a matter of such radical importance — with human life at the very center — was without precedent. We, the people, weren’t to weigh in? Weren’t to express, through democratically elected representatives, so much as an opinion (let alone a definitive judgment) on the value of unborn life and the putative duty of preserving same? Not as our nation’s highest court saw things.

Yet we, the people — a significant portion of us, anyway — continue, much to the exasperation of Roe supporters, to see some matters differently. Candidate George W. Bush committed himself to appoint judges less swollen with Olympian pride, less inclined to pose as lawgivers, than certain former appointees. Candidate Bush became President Bush. He stuck to his word. Samuel Alito Jr. — whose hallmarks are modesty and intelligence — seems almost certain to be confirmed.

And the consequences for Roe v. Wade? Might a remodeled court someday shoot it down, returning life questions to the people themselves? The court actually might not, in consideration of Roe’s nearly gray-bearded longevity. Time, as the saying goes, will tell.

What’s nice for now is that modesty-in-high-places seems set for a big victory — in the U.S. Senate chamber, of all unlikely places. Some days, some years, you take what you can get.

William Murchison is a nationally syndicated columnist.

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