(The Return of) Ignatz, by Sam Heldman

Friday, July 25, 2003

What should a judge do if he or she can prevent the slaughter of millions?
Recognizing that books can be (and have been) written about the moral/legal topics involved in this post -- and that a little blog post can only skim the surface -- let me say this:

If I were ever given a judgeship (ha ha, no way), you can be assured of this: that if I had a chance to make a ruling that would prevent the slaughter of millions of innocents, I would do it. Even if I had to fudge the precedents a bit, and even if I realized that I was basing my decision in large part on my own preferences, I would do it. I would prevent the slaughter of millions of innocents, if I could. Wouldn't you? And if I thought that the institutional role of "judge" required me to make a ruling that allowed the slaughter of millions, then I wouldn't be a judge. I would resign in protest -- and would, in fact, refuse the judgeship in the first place, if I foresaw this possibility. Wouldn't you? [UPDATE: The classic questions in this regard tend to be phrased in terms of judges in Hitler's Germany, and 19th century U.S. judges dealing with fugitive slave issues. Think about those examples before saying that you would elevate "the rule of law" above all other considerations.]

And we are supposed to believe that Bill Pryor -- who (according to himself and to his mentor Sen. Sessions) believes that abortion is the slaughter of millions of innocents -- wouldn't fudge the precedents a bit, or otherwise stretch the boundaries of the law whenever he could, to prevent such slaughter? I just don't buy it, given his demonstrated willingness to stretch the law to reach towards the results he favors in even less monumental contexts.*

Does this mean that I think that people who believe that abortion is the slaughter of innocent millions are ipso facto incapable of being "good judges"? No. It means that -- at least when we're talking about somebody with a track-record of bending legal principles to his own liking -- I predict that such person would in fact fudge the applicable precedents whenever he could, on the issue of abortion. And nobody owes anyone else an apology for making such a prediction, or for taking it into account when deciding as a political matter whether he or she supports or opposes the nomination. This is true, no matter what (religion, science, parental influence, you name it) impels the nominee towards the belief that abortion is the slaughter of innocent millions.

*(In this vein, I will also mention one thing that Pryor's defenders often cite: the fact that he gave a narrowing construction to an Alabama anti-abortion law, to bring it more in line with existing Supreme Court precedent. This is, to me, no proof that he set aside his own beliefs and preferences. It is, instead, precisely what a person would have done, had he (a) held the powers and authority of Attorney General, and (b) been determined to do whatever was in his power to reduce the "slaughter". The law, given a narrowing construction, prohibited some abortions; had he not narrowed it, it would have been struck down and would have prohibited no abortions. So I am completely unconvinced by this assertion that he set aside his preferences, in that episode.)

UPDATE: Thanks to Juan Non-Volokh for paying attention to this post, even if he disagrees with my assertion that Bill Pryor has a track record of fudging precedents and bending legal principles to his own liking. For prior explanations and support for my assertion in this regard, you might perhaps look to my posts on Pryor and Bush v. Gore and Pryor and Hope v. Pelzer

posted by sam 1:16 PM 0 comments


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