Bench Memos

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.

Most Popular

Film & TV

A Sad Finale

Spoilers Ahead. Look, I share David’s love of Game of Thrones. But I thought the finale was largely a bust, for failings David mostly acknowledges in passing (but does not allow to dampen his ardor). The problems with the finale were largely the problems of this entire season. Characters that had been ... Read More
Politics & Policy

The Great Misdirection

The House Democrats are frustrated, very frustrated. They’ve gotten themselves entangled in procedural disputes with the Trump administration that no one particularly cares about and that might be litigated for a very long time. A Washington Post report over the weekend spelled out how stymied Democrats ... Read More
World

Australia’s Voters Reject Leftist Ideas

Hell hath no fury greater than left-wingers who lose an election in a surprise upset. Think Brexit in 2016. Think Trump’s victory the same year. Now add Australia. Conservative prime minister Scott Morrison shocked pollsters and pundits alike with his victory on Saturday, and the reaction has been brutal ... Read More
NR Webathon

We’ve Had Bill Barr’s Back

One of the more dismaying features of the national political debate lately is how casually and cynically Attorney General Bill Barr has been smeared. He is routinely compared to Roy Cohn on a cable-TV program that prides itself on assembling the most thoughtful and plugged-in political analysts and ... Read More
Film & TV

Game of Thrones: A Father’s Legacy Endures

Warning! If you don't want to read any spoilers from last night's series finale of Game of Thrones, stop reading. Right now. There is a lot to unpack about the Thrones finale, and I fully understand many of the criticisms I read on Twitter and elsewhere. Yes, the show was compressed. Yes, there were moments ... Read More