Valin Posted January 27, 2012 Share Posted January 27, 2012 NRO Bench Memos: Ed Whelan January 27, 2012 After Justice Blackmun’s death more than a dozen years ago, I hadn’t realized that there was anyone left who would defend the actual reasoning (if that term isn’t wholly out of place) of Roe v. Wade. As I’ve documented (in point 2 here), even liberals who support a right to abortion condemn Roe in scathing terms. As one of Blackmun’s former clerks (“who loved Roe’s author like a grandfather”) put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” And: Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.* In the decades since Roe, a cottage industry of legal academics has been busy trying to explain how its result could be justified by other reasoning. So it’s a very unpleasant surprise to discover that perhaps the lone remaining defender of Roe has been nominated by President Obama to a Ninth Circuit seat. Andrew D. Hurwitz, whose confirmation hearing took place yesterday, celebrates in this law-review essay from a decade ago the “crucial influence” that the abortion opinions issued by Judge Jon O. Newman in 1972 had on “the outcome and the reasoning” in Roe. Hurwitz, who was a law clerk for Newman at the time, contends that Newman’s “careful and meticulous analysis of the competing constitutional issues” was reflected in “almost perfect lockstep” in Roe. (Snip) Link to comment Share on other sites More sharing options...
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