Bench Memos

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Extremist Makeover


So, Senator Reid has an FBI secret which will end the war over Henry Saad. (See post by Sean Rushton.) And Senator Schumer feels like he is being whacked upsides the head with all these renominations. (See Jonathan Adler’s post.) Maybe it’s just me, but Rick Garnett’s call to “Get to the Merits!” seems like a pretty good idea right about now.

Assuming that the merits have at least something to do with abortion, the filibusterers are getting more extreme by the day. For that reason Republican senators should be prepared to go beyond arguments about competence and fair hearing–probative thought those points are–and argue for these judges by arguing in favor of substantive positions on abortion and Roe.

Priscilla Owen an “extremist” for upholding a parental notification law? Not according to every poll I have ever seen. Just the other day a score and more Congressional “pro-life” Democrats announced legislation to winnow out (through various means short of prohibition) ninety-five percent of this country’ abortions. The headline I wish we saw but did not: “Dems declare that nineteen of twenty abortions should not occur”. Quondam conservative New York Times columnist David Brooks is the most recent of a growing line journalists to call for overturning Roe–and it helps that liberal scholar David Garrow (in the latest Legal Affairs) how much of the Roe opinion was jerry-rigged by Blackmun’s clerks.

Come to think of it, on almost all the issues mismanaged by the courts over the last generation–church-state, crime and punishment, marriage, pornography–the U.S. has become a red state. The filibusterers are “extremists” on procedure, tactics, rhetoric–and on the merits of all these issues, too.


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