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October 20, 2005
Richard Cohen For SCOTUS?

In a column that will surely generate much ire among his usual readers, Richard Cohen makes an almost-perfect argument for the reversal of Roe v Wade and the support of originalism in Supreme Court deliberations, showing that originalism does not limit its utility or its attractiveness to just conservatives. Cohen, while stating his pro-choice position clearly, writes that the 1973 decision has a "musty" feel about it, having its scientific reasoning frozen in amber and the conclusions which follow from it lacking intellectual support:

If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want -- two consenting adults, after all -- but keep Jefferson, Madison and the rest of the boys out of it.

Conservatives -- and some liberals -- have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me -- I'm pro-choice, I repeat -- but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.

In the final analysis, Cohen writes that legalized abortion can exist outside of Roe, and that the only argument for defending it appears to be that the ends justify the means, a position he strongly rejects. In the midst of the Harriet Miers pas de deux, and even the John Roberts confirmation dance, Cohen's column begs the question: if a liberal columnist like Cohen can easily kick out the rotting intellectual struts of Roe in the opinion pages of the Washington Post, why can't a Republican President nominate a Supreme Court justice who can do the same thing for a Republican Senate?

Originalism could hardly get a better explanation these days, especially in this media environment. Originalism limits the Court's ability to proclaim policy by "fiat", as Cohen rightly calls it. It protects against ends-justifying-means rationalizations, and it requires the Legislature to do its job instead. The judicial restraint in originalism keeps the courts from having to revisit questions about its self-created right to privacy with silly questions about the constitutionality of barring prostitution. The debate on whether laws banning prostitution or drug use are good public policy belongs in Congress and the state legislatures, not in the courts.

If the present administration had the courage that Cohen had when he wrote this article, then we could have had this debate starting on November 7th in the Senate Judiciary Committee hearings. We could have seen just how mainstream originalism is when explained to the American people in plain language and how it benefits people across the entire political spectrum, not just conservatives on one particular legal issue. We would have had the chance to turn around decades of judicial hijacking of our political system had a Janice Rogers Brown or Michael Luttig been the nominee.

Instead, we will have Harriet Miers avoiding any expression of her politics and dodging and weaving through yet another meaningless exercise. She may give an impassioned expression to originalism, but more likely will follow Roberts' example and give paeans to stare decisis and relegate originalism back to its corner once more. It seems a shame that the current administration cannot, with all its advantages, muster up more courage than Richard Cohen when the opportunity arises.

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Posted by Ed Morrissey at October 20, 2005 5:43 AM

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» Is the Pro-Life Movement Gaining Ground? from BaylyBlog: Out of Our Minds Too
Richard Cohen, perhaps the most honest liberal columnist this side of Nat Hentoff, has an interesting column in today's Washington Post calling for liberal abandonment of Roe v. Wade. Cohen writes of his own shifting stance on abortion: I no... [Read More]

Tracked on October 20, 2005 10:14 AM

» Pro-Choice, Anti-Roe from The Unalienable Right
Our position has always been that the U.S. Constitution simply doesnt address the abortion issue, and that whether one is personally pro-choice or pro-life is a separate question. [Read More]

Tracked on October 20, 2005 8:15 PM

» Even Richard Cohen Pans Harriet Miers from Hard Starboard a round-about way. What interested me, aside from the spectacle of a hard-left Extreme Media pundit publicly admitting that Roe v. Wade has been a disaster for our political culture and the integrity of the judiciary (if not also acknowledging... [Read More]

Tracked on October 20, 2005 8:25 PM

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