George Santayana said, "Those who cannot learn from history are doomed to repeat it." Conservatives disinterested in the principles held by Supreme Court nominee John Roberts would be wise to heed Santayana's counsel.

Dwight Eisenhower apointee William Brennan found the death penalty, the continuous use of which by American juries predates the Founding, in violation of the Eighth Amendment in Furman v. Georgia. The ruling effectively outlawed the punishment for several years, allowing Charles Manson and other killers to escape the sentences given them. Richard Nixon appointee Harry Blackmun found a right to an abortion in the Constitution, authoring the infamous Roe v. Wade decision. Gerald Ford appointee John Paul Stevens found in Kelo v. New London that although you don't have a right to your own property, giant corporations--particularly ones able to provide greater tax revenue to local governments--do. Ronald Reagan appointee Anthony Kennedy found in the Constitution a right to sodomy in Lawrence v. Texas, which just 17 years prior had escaped the notice of the Court. George H.W. Bush appointee David Souter found in McCreary County v. ACLU that a county's placement of the Ten Commandments in its courthouse violates the First Amendment's language that "Congress shall make no law respecting an establishment of religion."

Notice a pattern here? Republican appointees have authored some of the worst decisions of the last half century, trampling over federalism, self-government, and the words of the Constitution. Doesn't prudence require a great deal more curiousity about the judicial outlook of John Roberts than currently demonstrated by the Right? In the eyes of conservatives, Earl Warren, Potter Stewart, William Brennan, Harry Blackmun, Lewis Powell, Sandra Day O'Connor, Anthony Kennedy, and David Souter--more than half of the appointments to the High Court by Republicans since 1950--have been disappointments. Noting the track record of the "trust our leader" approach, isn't it time for conservatives to replace their unrewarded faith in blank-slate judicial nominees with a healthy skepticism?

According to most everything that I've read, it is unlikely that Roberts would vote to reverse the precedent established by Roe v. Wade. And if that's the case, Bush's promise to appoint a justice in the mold of Scalia and Thomas has turned out to be a lie.

And while I hope that the pundits are wrong (what else can I do but hope), I suspect they are right.

http://tinyurl.com/dztlh

i think there's a good chance that Roberts would vote to reverse the precedent set by Roe v. Wade if a similar case were to come before him. the tragedy is that we're not sure. i think it's safe to say, however, that Roberts would use the text of the Constitution over any faulty ruling that established a precedent that creates law or fabricates "rights" within the Constitution.

Well, I think Roberts wouldn't overturn Roe v. Wade because if he's going to do that, he'll also have to overturn Griswold v. Connecticut.

Ralph, if you want to throw out condoms too, to get rid of abortion, be my guest, but it seems to me that is going to be where the rubber - ahem - meets the road and where a lot of major denominations who've found it convenient in the past 30 years to make political alliances are going to part ways (read: generally socially conservative Catholics and generally socially conservative Protestants). As everyone knows from Monty Python's "The Meaning of Life", the Protestant values his ability to "wear little rubber devices to prevent issue" while those Catholics, "every time they have sexual intercourse they have to have a baby."

I don't like it any more than you do, but you should get used to the idea -- as a political fact -- that abortion is going to be legal in the U.S. for the forseeable future. I don't think even Bush (or someone with a still stronger committment to appoint a justice dedicated to overturning Roe v. Wade) will be able to change that.

Dan, as for your main point -- I think you're right. (GASP!)

Secondly, having reviewed Roberts's history as best I can from online sources, I'm happy with him.

The only thing I find distressing about the man is that he's a friend of Judge Thomas. But he seems to be much smarter than Thomas, so I'm not so worried.

He's smart, he's Catholic, and he loves the law and is dedicated to the study and practice of it in the traditions laid down by the Founding Fathers and those who followed them.

What more do you want?

Regards,

from the heart of Old Europe,

Daniel

Ali G,

What relation is there between abortion and contraception?

Griswold v. Connecticut is a different can of worms. If "liberty" in the 14th Amendment is read that broadly, then what regulatory power do the states have left? At any rate, the reversal of Roe does not imply the reversal of Griswold. The former has no leg to stand on, while the latter does (albeit, a dubious one).

Aside from the supreme ethical concern with Roe, as perhaps the worst decision of all time, it represents a solid indicator of judicial philosophy. If a Justice is willing to let Roe stand, they cannot be counted on to defend much else.

I know to Ali G we're beginning to sound like a broken record, but I'll give it a try ONE MORE TIME! The objection of MOST Conservatives to the Roe v. Wade decision is not the banning or legality of abortion; it's that through INCREDIBLY poor legal thinking (or total lack thereof!), the Supremes found a "right to privacy" in a penumbra which simply doesn't exist. Again, MOST Conservatives realize and accept that were the Supremes to reverse Roe, the question would simply go back to the individual States WHERE THE CONSTITUTION CLEARLY SAYS IT BELONGS, and the vast majority of the States would determine the ground rules.

Best regards to all,

Thom

Thom,

I'm not sure I agree that opposition to Roe stems from conservatives appreciation of the Constitution, or better the "originalist" or "strict constructionist" judicial philosophy. The religious right is the main political constituency that seeks to reverse Roe but I think that has more to do with their religious principles -- abortion is murder -- than it does with any judicial philosophy.

If someone were to ask the leaders of the religious right -- say Pat Robertson, Gary Bauer -- would they also agree that Brown v Board of Education was also bad Constitutional law? Would they want someone who would reverse this decision as well? Personally, I really don't think it concerns them too much. Since the "originalist" philosophy is the only philosophy that will reverse Roe the religious right naturally supports this philosophy -- but not as end in itself, but only as a means for reversing Roe.

I agree with the sentiments expressed in this thread. We simply do not know if Justice Roberts would vote to overturn Roe v. Wade or if his vote, on the Supreme Court, would represent the values that Conervatives hold dear. What I think needs to be understood is "Conservatives" and "Republicans" are not the same thing.

Conservatives make up a sub section of the Republican party but Conservatives are not the dominant group within this party. I think the term that best describes the group who dominates the Republican party is the term "Rockefeller Republican." These people are much more fiscally and socially liberal than Conservatives. As such, overturning Roe v. Wade and other values that Conservatives hold dear are not as important to them.

The decision that Conservatives need to make is as follows: A.) Do Conservatives form a third party or vote with a third party, such as the Constitution Party, that will likely better represent Conservative values. If Conservatives do this, this means splitting the Republican vote. This would likely give the country to the "far left" Democrats for the foreseeable future. B.)Continuing doing what they have been doing which is vote with the Republican party, in order to check the far left. This option is best defined as voting for the lesser of the two evils.

Perhaps if Conservatives threatened to bolt the Republican party this might get the leadership of the Republican Party to take them more seriously. Perhaps my ana-lysis is wrong. Flynnfilers are among the smartest on the internet. If my ana-lysis is wrong, I am fully confident that flynnfliers will point it out and they will explain why.

I don't think the salvation conservatives are seeking will be found at the ballot box -- whether Republican or third party.

Eric

I agree. I think what we need is a return to our Christian hertiage that this country was founded upon. If neither the Republican party nor a third party will represent our values, as conservatives, what would you suggest we do? I'm certainly not for surrender.

I do think, with Daniel, that overturning Roe would loosely imply an overturning of Griswold, but he's dead wrong to imply that this would somehow rid the US of abortion and condoms. Not only would abortion be legal, though more or less limited in the vast majority of states, but condoms wouldn't be made illegal anywhere, even Utah.

You are simply repeating the liberal lie, which you know to be false, that getting rid of Roe = getting rid of abortion (you've added an original confabulation of your own, that getting rid of Griswold = getting rid of condoms).

Coulter wrote another great column on Roberts yesterday.

I agree w/ Ali G that abortion and contraception are morally reducible to the same basic principles regarding the dignity of the person and life and so are ultimately intertwined (as is sodomy, cloning, stem cell research, artificial fertilization, etc.). However, as a practical matter and as a matter of jurisprudence I think this argument is a non sequitur. That is b/c the issue at stake is whether or not, in any of these areas, the states are free to legislate on them as they please. Specifically, is there a constitutionally guaranteed right to privacy that encompasses all these various activities? If there isn't, and that is what the conservative position claims, then Griswold, Roe, Lawrence, and more cases were decided wrongly and all such decisions to regulate those activities can legitimately be taken by the various state legislatures. This means that none of those particular activities would necessarily become illegal at all as Xantippe points out.

I want most to respond, however, to Ali G's dissing of Thomas; whom I believe to clearly be the best justice on the court. I would be interested to hear why you think he is a bad justice (and whether or not his belief in natural law is being taken into account in forming your opinion)?

I think conservatives should secede from the culture or as Paul Weyrich suggested after the Senate refused to convict President Clinton, "drop out." Conservatives should focus their efforts where they can see tangible results -- and electing Republicans or campaigning for unelectable third-parties is a complete waste of time.

Homeschooling and the Minutemen are some of the more positive developments that conservatives should get behind and support. Throw away your television and don't participate in the economy -- music, media, tv -- that produces moral sludge. You can't complain about a rotting culture when your dollars continue to feed it.

I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.