Supreme Court:
Predicting judicial behavior inexact science

		Eye on the  Capitol  John Huebscher

Anniversaries are times of reflection on what has gone before. The anniversary of Roe vs. Wade, the 1973 court decision that legalized abortion in the United States, is no exception.

The 31 years since that decision contain many lessons, one of which is the peril of predicting the behavior of Supreme Court justices.

The Supreme Court that decided Roe that day has all but turned over. Of the nine justices on the Supreme Court in January of 1973, only Chief Justice Rehnquist remains. The other eight have since been replaced.

No direct relationship

If there were a direct or predictable relationship between the policy views of the presidents who make judicial appointments and their nominees to the court, one would have expected that Roe vs. Wade would be a memory. That has not been the case, however.

Of the eight justices to join the court in the last 31 years, presidents generally regarded as "pro-life" on the abortion question have appointed six. President Ford named Justice Stevens in 1975. President Reagan nominated Justices O'Connor, Scalia, and Kennedy. Justices Souter and Thomas were put on the bench by President Bush. Most of the six won the backing of pro-life groups and were opposed by supporters of abortion rights.

Only two of the eight, Justices Ginsburg and Breyer, both named by President Clinton, owe their seats on the court to a president who supported abortion rights.

However, these last two individuals were not yet on the court in June of 1992 when the justices dealt with the most direct opportunity to overturn Roe vs. Wade in the case of Planned Parenthood vs. Casey. With six justices who were not on the bench in 1973 and all appointed by pro-life presidents, many expected that Roe might be reversed.

It didn't happen. Instead, the court reaffirmed central aspects of Roe vs. Wade in a bitterly argued 5-4 decision. Four of the five votes to keep abortion legal were cast by the six justices named since 1973.

Justices Stevens, O'Connor, Kennedy, and Souter passed on the chance to repeal Roe. Only two, Justices Scalia and Thomas, voted in the minority.

Clearly the pro-life views of the presidents were not widely shared by the justices they appointed.

Imperfect predictor

Nor would it seem that a president's place on the liberal-conservative spectrum is a reliable predictor of judicial behavior.

The court that ruled on Planned Parenthood vs. Casey consisted of justices appointed by Presidents Kennedy, Nixon, Ford, Reagan, and the first President Bush. It is fair to say that most political observers would tab President Kennedy as the most "liberal" of the group and President Reagan as the most "conservative."

But the liberal-conservative test is also an imperfect predictor of judicial behavior. For Kennedy's lone appointee on the Court of 1992, Justice White, voted to overturn Roe just as he had opposed it in 1973. As noted above, two of the three Reagan appointees, O'Connor and Kennedy, voted to keep abortion legal.

The past is not an infallible predictor of the future but it does offer lessons. One lesson drawn from the history of judicial appointments since 1973 is that neither the stated policy statements nor the political orientations of presidents are reliable predictors of how their nominees will behave once they are confirmed.

Rather the insulation provided by a lifetime appointment means there is no direct path connecting election outcomes and Supreme Court decisions.

John Huebscher is executive director of the Wisconsin Catholic Conference.

Archbishop Burke:
We need more 'battle bishops' to lead us

	Guest commentary  Judy Winter

God bless Bishop Burke! We need more "battle bishops" to lead us. Virulent war is being waged in all society, not only against life, but against all sound principles of natural law.

All too many people are being sucked into this moral maelstrom by the oily tongues of the politically correct.

Bishop's role

A bishop is appointed to oversee the spiritual welfare of a diocese. If he "cannot rule his own household, how can he take care of the church of God" (1Tim 3:5)?

"The Church is the pillar and mainstay of the truth" (1Tim 3:15), not some politico more interested in pandering to power and prestige than in following Biblical truths. A bishop is duty bound "to be diligent in reading, in exhortation and in teaching" (1Tim 3:15).

Catholic politicians

It is radically disingenuous for politicians and judges to swear to uphold the Constitution of this nation while at the same time doing all within their power to undermine that Constitution through their deconstructionist interpretation of the law.

They stop at nothing to further their anti-life, anti-family, anti-moral, and anti-God agenda. On top of that, some want to loudly protest that they remain good and faithful Catholics in spite of deliberately ignoring the sound moral guidance of their bishop.

Please spare me! How can any Catholic with even a shred of moral sanity presume they can legitimately vote for such corruption?

Choices are clear

How is it that we can no longer distinguish the difference between license and liberty? Does personal freedom carry no responsibility?

Free choice is a God-given inalienable right which God Himself does not revoke. The choices are clear: truth or untruth, life or death, heaven or hell.

Unfortunately, too many would like to make their choices without any consequences. It doesn't work that way.

Moral bankruptcy

Are we as a nation to follow spiritually corrupt politicians into further moral bankruptcy? Our founding fathers recognized that we are endowed by our "Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." Our elected officials are sworn to uphold these divinely ordained principles.

The pundits of the politically correct would have us believe we should not be one-issue voters. We should not be so narrowly selective or expect our elected representatives to follow natural law.

Pray tell, if the poor and defenseless do not garner our protection, who does? If one is denied life, what other issue matters? In our high school biology class, life was defined as occurring when a cell divides and multiplies. How then can pro-abortion politicians or those who vote for them claim to be supporting constitutional law when the unborn are being denied due process of law? (Amendment 14, U.S. Constitution).

Death penalty

Which brings us to the death penalty. The Catechism of the Catholic Church #2266 acknowledges that "it is the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding in cases of extreme gravity, the death penalty."

Most would agree the death penalty needs to be more judiciously applied, but nowhere in church doctrine or tradition is this civil responsibility forthrightly denied to legitimate governments.

Use of armed force

#226 CCC continues, "For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge." Twelve years of diplomatic initiatives through the U.N. failed to halt attacks on U.S. interests: the USS Cole, various embassies, and ultimately 9/11. How long should we have stood by as the world descended into even deeper barbarism and tyranny as exemplified by Saddam Hussein?

Why did we enter the war in Europe against Hitler? He never attacked us. Should we have confined our war efforts to Japan? We'll never know if Saddam would have been more inclined to accept exile had Germany and France the moral integrity and intestinal fortitude to back the United States in its prewar U.N. declarations.

Moral principles

Since Bishop Burke's letters of legitimate pastoral concerns were private correspondence, it seems obvious that one of these politicians deliberately leaked this to the press to forward their own self-serving, amoral agenda.

These letters cannot be interpreted as some conspiratorial papal attempt to control votes, but rather as a Biblical reminder that one cannot serve God and man.

Pious platitudes to the contrary, one must vote from a basis of sound moral principles. This foundation best serves all citizens, born and unborn. Too many politicians are opting to eliminate their own future constituency. How blind can they get?

If we really wish to make a difference in society, we must promote Eucharistic Adoration and pray for an outpouring of the Holy Spirit on this world so that it might awaken from its sleep of death and revive the culture of life. Battle bishops know this.

Judy Winter is a member of St. Mary Parish, Platteville.