Bench Memos

NRO’s home for judicial news and analysis.

Re: Gonzales, Recusal, and Partial-Birth Abortion


Earlier today, in the case of Carhart v. Gonzales, the U.S. Court of Appeals for the Eighth Circuit ruled that the federal Partial-Birth Abortion Act of 2003 violates the Supreme Court’s 2000 ruling in Stenberg v. Carhart. The Eighth Circuit is the first federal court of appeals to rule on the federal act.

The liberal media generally sees fit not to inform its audience what “partial-birth abortion” is. Instead, as in a recent Washington Post article, it will merely refer to a “procedure called ‘partial birth’ abortion by critics.” So pardon me for a second while I describe in simple lay terms what partial-birth abortion is: It’s a method of late-term abortion in which the abortionist typically dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs a pair of scissors into the head, sucks out the baby’s brains, collapses the skull, and delivers the dead baby. According to estimates cited by the Court in Stenberg, up to 5000 partial-birth abortions are done every year in this much-blessed country.

The Eighth Circuit’s ruling fully supports my previous observation that it appears a virtual certainty that any federal partial-birth abortion case reaching the Supreme Court would involve a decision by the federal court of appeals applying Stenberg to invalidate the federal act. As I have explained, because AG Gonzales, were he to be appointed to the Court, would be required to recuse himself, the president’s appointment of him to the O’Connor vacancy would predictably result in invalidation of the federal act–a centerpiece of the president’s campaign to build a culture of life–by (in Court jargon) a 4-4 affirmance by an equally divided court. By contrast, virtually any other serious candidate could be expected to provide the decisive fifth vote to uphold the federal act (and overturn Stenberg).

This issue provides just one of countless examples why all of us who admire Gonzales should recognize the elementary fact that his uniquely severe recusal obligations would put in serious jeopardy the very cases that the administration deems of greatest importance to the nation.


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