The empathy warriors fear of actual judges

Andrew McCarthy:
Go ahead and Roe, Roe, Roe your boat, Senator. Thanks to Justice Kennedy, we’ve actually been living in a Casey world — as in Planned Parenthood v. Casey — for the past quarter century. For good and for ill. “Don’t you dare touch Roe” is the political hyperbole of Democrats and their fellow travelers. It is not a serious legal position — as if serious legal positions had anything to do with confirmation politics.

Here is reality: Casey’s refinement of the right judicially manufactured in Roe granted expansive and expanding room to regulate abortion. The validity of those regulations, not the core holding of Roe, is what dominates abortion litigation nowadays. It is unlikely that cases will present a need to grapple with Roe, it is even less likely that Roe will be overturned, and even if this highly unlikely event were to come to pass, it would not render abortion illegal. Instead, abortion would once again be a question for the states, the vast majority of which would guarantee some degree of access to abortion. We are not going to move into a post-Roe era, but even if we did, no woman who could obtain an abortion today would be unable to get one post-Roe.

GOP control of the Senate is more notional than actual: There are just 51 Republicans, and really just 50 due to Senator John McCain’s obdurate hold on a job he is no longer physically able to perform. Majority Leader Mitch McConnell may have some small margin for defections because a few Democrats are up for reelection in states where President Trump is popular. Basically, though, even without any threat of filibuster (thank you, Harry Reid), Republicans have to stay united to get any judicial nominee confirmed.

This dynamic inflates the influence of Senator Collins and other GOP centrists, who could get spooked by the prospect of a Supreme Court justice who is too “conservative.” It is a sign of our wayward times that a “conservative” judge is one committed to construing the law as it is written, in accordance with what it was commonly understood to mean when adopted. You might think that’s simply what a judge is. But progressives rely on robed legislators to block the elected officials who beat them at the polls, and to impose on the nation what they cannot enact democratically. These are known as judges with “empathy.”

Collins wants you to know: She’s not one of those staid old Republicans looking for a staid old by-the-book jurist. She wants empathy!
The same people who want immigration law based on empathy want abortion based on empathy for the mother and not the child.  But wherever you have a law based on feelings rather than facts you place others at risk, and you put all legal protection at risk. One man's "emanations from the penumbra" may not be that of another.


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