Legal Commentary

Roe: With "Friends" Like Sunstein, Who Needs Enemies?

By Big Tent Democrat

Yet another reason why I believe Cass Sunstein is unfit to serve in an Obama Administration, his "defense" of Roe:

Those who seek to preserve the right to choose ought to be prepared to make some distinctions. As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents.

This is nonsense in my opinion, particularly Sunstein's statement that Roe was not rooted in the text of the Constitution and the Supreme Court's precedents (Roe particularly followed Griswold to its logical conclusion.) Sunstein is entitled to his opinion, but he is not entitled to serve in a Democratic Administration or to be a Supreme Court appointee of a Democratic President. More . .

After basically taking the extreme conservative view of Roe, Sunstein "defends" Roe thusly:

[I]t is one thing to object to Roe as written in 1973. It is another to suggest that it should be overruled in 2008. American constitutional law is stable only because of the principle of stare decisis, which means that in general, the Court should respect its own precedents.

To Sunstein, Roe is only defensible as an act of stare decisis. Thus, on a woman's right to privacy and to choose, he is like Chief Justice Rehnquist was to Miranda, upholding Miranda on stare decisis grounds, instead of on the merits. We do not need, indeed, can not afford, a Cass Sunstein in an Obama Administration or on the Supreme Court.

Full post as published by TalkLeft on September 14, 2008 (boomark / email).