An Emanation in search of a Penumbra

"lH]ighly qualified and ideologically moderate"? That means one thing: Nominees must baldly state that they have the Penumbras Clause delusion or face hideous charges of trying to murder women, segregate blacks, create a police state, and censor speech-to paraphrase Sen. Teddy Kennedy's "Judge Bork's America" speech.

Republican presidential candidates who try to straddle the emperor's new clothes question invariably come up with the loopiest stances of all. George Bush Senior and old "Electable" Bob, for example, denounced litmus tests on the one hand, but, on the other, made a point of announcing that they themselves are pro-life. Even stranger-both endorsed the position that judges should believe in "the sanctity of innocent human life."

With all due respect to big vote-getters like these guys, it has never been clear to me why I should care that their judicial nominees are themselves pro-life. This is not only peculiar but rings of a religious test. I don't care if a judge wants to personally perform abortions on his dining room table (well, maybe that's a little creepy). But the point is, what I want to know-and what, it seems to me, every logical person should want to know-is whether judicial nominees see mirages in the Constitution.

Candidate W has said the only "test" he would impose on his judicial nominees would be this: "whether or not judges will strictly interpret the Constitution." That's more than will actually be needed to overturn Roe.

Judicial nominees can have wide-ranging, formless, undisciplined interpretations of the Constitution and still see that there is nothing in the Constitution remotely touching on abortion. I'd be happy if W would just promise to ask them: "Do you often hallucinate when contemplating the Constitution?" If "political realities" dictate that Republican candidates and judicial nominees cannot publicly denounce the left's make-believe clauses in the Constitution, why not go whole hog and make up some of our own? They can have a Privacy Clause, we can have a Sanity Clause. I think it's right there in the penumbras.

Copyright Human Events Publishing, Inc. Jul 23, 1999
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