David Limbaugh

But apart from their angst over Alito's Neanderthal view of the "constitutional right to privacy," the senators seem convinced he is lying in professing he would approach the Roe precedent with an open mind.

They wouldn't hesitate to impose their pro-abortion policy views if sitting on the Court. So they have difficulty believing that justices who are personally pro-life would subordinate their personal preferences and be guided by dispassionate principles of constitutional interpretation.

I think it is entirely believable that Alito could write in 1985, as an executive branch advocate, that Roe should be overturned yet testify in 2006 that as a Supreme Court justice, he would approach abortion cases with an open mind.

The most ardent originalist scholars and judges generally have a deferential respect for Supreme Court precedent. They regard it as a monumental matter to overturn longstanding decisions, even if wrongly decided originally.

Equally significant, those with a restraint-oriented judicial philosophy are naturally predisposed against being predisposed on issues that might come before them. Engrained in them is the idea that the judiciary functions in a passive role. Before ruling on a matter, they await a real "case or controversy" between actual litigants.

It is against their philosophy even to flirt with considering how they might decide any case until it has come before them, they've become informed on the facts and law, and heard the arguments of the advocates.

I have little doubt that Judge Alito is personally against abortion and, as a matter of policy, probably believes it should be illegal, perhaps with certain exceptions. I further believe that he still thinks, like most legal scholars, that Roe was wrongly decided or wrongly reasoned.

But as a strong supporter of Judge Alito, and one who would like to see Roe overturned and the legality of abortion referred back to the several states, I think there's a good chance -- but am hardly sure -- that Judge Alito would vote to overturn it. I honestly don't think he knows, either, because he has no idea how such a case might eventually come before him.

The only ones who think they know for sure how Judge Alito would rule are the scoundrels interrogating him, as they readily project onto him their own willingness to rewrite the Constitution to conform to their policy agenda. Because of the flaws in their character and principles, they are apparently blinded to the gems in his.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert in law and politics and author of new book Crimes Against Liberty, the definitive chronicle of Barack Obama's devastating term in office so far.

©Creators Syndicate