Ginsburg Standard is No Fallacy

In today Washington Post, Ruth Marcus's "Ginsburg Fallacy" attempts to knock down the argument that Democrats owe the President the same deference on Judge Alito that Republicans showed to the clearly left-leaning Ruth Bader Ginsburg. But Marcus unwittingly provides support for the argument that Senate Democrats have no sound reason to oppose Alito on abortion grounds. Marcus concedes that Ginsburg at least "flirted" with some pretty nutty ideas – abolition of Mother's and Father's Days, co-ed prisons, a constitutional right to prostitution and polygamy – 20 years before her nomination to the High Court. But, Marcus argues, Ginsburg "had a much more recent body of work – her dozen years as an appeals court judge – that belied any notion that she was a raging lefty."

Fast forward to 2005. The Left is screaming about Alito's statement – also 20 years ago – that "the Constitution does not protect a right to an abortion". That view, while controversial, is well within the mainstream and is shared by prominent liberals. It is not even remotely comparable to Ginsburg's nutty positions 20 years before her nomination. Most importantly, Alito has the same "much more recent body of work . . . as an appeals court judge" that belies any notion that he is a raging pro-lifer. In fact, as the Christian Science Monitor (11/2/05) reported, "of the four abortion cases in which he participated as an appeals court judge, he voted on the pro-choice side in all but one." In short, if it was wrong to oppose Ginsburg on ideological grounds, it is certainly wrong to oppose Alito based on anything we know about his views on abortion.