Maybe we should call this “Terri’s nomination.” After all, the naming of Samuel Alito as the nominee to fill Sandra Day O’Connor’s seat on the U.S. Supreme Court came about in quite the same manner as the passage of “Terri’s law.” That legislation was enacted to give the parents of the vegetative patient Terri Schiavo an extraordinary chance to use the federal courts to carry on their crusade against Schiavo’s husband, Michael.
The Schiavo spectacle that so stunned us last spring has, in its way, been replayed in the downfall of Harriet Miers and the rise of Alito in her place. When the self-righteous right does not immediately get what it wants, it uses all means necessary to force its handmaidens in public office to capitulate.
This energetic faction wants beyond all else for the federal courts to meddle in the personal, medical and religious affairs of those of us who conduct our lives, or our deaths, in ways the right finds objectionable.
When it fails to achieve this through normal politics, it seeks to turn the judicial branch into its very own agent.
The Miers selection was incomprehensible, a gross miscalculation on the part of a president who believes in trusting his instincts about those close to him, no matter how many times his intuition fails.
There was well-founded concern about Miers’ lack of qualification to sit on the nation’s highest court.
But do not be fooled about what finally did her in. It was a speech she gave more than a decade ago to a group of women executives in Dallas. In it, Miers committed heresy against the religious right.
She advocated “self-determination” on matters such as abortion and the practice of religion. “When science cannot determine the facts and decisions vary based on religious belief, then government should not act,” Miers said. That single sentence undermines the theocratic agenda of the right, whether the matter involves the death of Terri Schiavo or the life of an embryo.
Within hours after The Washington Post reported excerpts from this speech and others, right-wing groups that had previously been on the fence about the Miers nomination called for her to withdraw. Within a day, she did.
Alito is now nominated in her place, and cries of joy rise from those precincts where there had been such despair. What we know so far about Alito’s views on privacy, personal autonomy and the law is that he believes states can require a married woman to inform her husband about a planned abortion.
Even if he would beat her silly? Or if the husband already has abandoned the family, leaving the woman with other children to feed? We do not – cannot – know the hidden corners of every marriage. Neither can a state legislature or a federal judge. Alito’s dissenting opinion on husbands, wives and abortion in the case known as Planned Parenthood vs. Casey ultimately was rejected by the Supreme Court.
But there will be so many others. They will test not only the limits of abortion rights, but the rights of terminally ill patients to manage their deaths. They will, eventually, test the newly minted right-wing theory that pharmacists can refuse to fill a valid prescription for birth control pills if they have a religious objection. This sets up a historic conflict between a woman’s right to basic medical care and the druggist’s right under the First Amendment to practice the religion of his or her choice. It is one of those controversies the right loves to concoct because it can claim persecution if the public discourse – or the court case – does not go its way.
But that is, after all, why there is such ecstasy among social conservatives about Alito’s proposed ascent. They are confident he will go their way – legal precedent, common sense and the constitutional requirement of an independent judiciary be damned.
