[Congressional Record (Bound Edition), Volume 153 (2007), Part 7]
[Senate]
[Pages 9326-9327]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          GONZALES V. CARHART

  Mr. HATCH. Madam President, yesterday was a good day for democracy. 
It was a great day for American constitutionalism. I have said it 
before. I will continue to say it. All too often, we see judicial 
decisions on America's most important social issues made without any 
constitutional warrant.
  Too difficult to convince your community that it should not pray 
before football games? No problem. Just find a judge to say that the 
practice is unconstitutional.
  Too discouraged by the slow pace of the march toward same-sex 
marriage? Find a judge to declare that the State constitution has 
allowed it all along. A constitutional right to same-sex marriage--
``presto chango.''
  Americans of all political stripes understand that this highjacking 
of social policy from the people's representatives is deeply misguided.
  A good number of law professors, law students, judges, and 
politicians still continue to inject the judicial branch into social 
controversies. Yet, in attempting to smooth out the rough edges of 
democracy, activist judges have time and again undermined democracy and 
increased bitterness in our political debates.
  Yesterday's decision in Gonzales v. Carhart was a step toward 
righting that dangerous trend. It was a step toward restoring the 
people's liberties and the vitality of our democracy.
  Let me explain.
  In 2003, Congress passed, and the President signed, the Partial-Birth 
Abortion Ban Act. This was well-considered legislation. It was broadly 
supported by the public. Senators of both parties, including my 
colleague from Vermont, the chairman of the Judiciary Committee, 
supported the bill. And after years of trying, it finally became law.
  It was a modest bill, born of an existential abhorrence of a 
procedure that callously snuffed out human life. Nonetheless, a 
coalition of the usual proponents of judicial legislating attempted to 
undo this law.
  Fortunately, the Supreme Court disagreed and upheld this legislation. 
It was a reasonable decision. And it showed a proper deference to the 
people and their representatives--deference that one would expect in a 
democracy.
  The public first became aware of partial-birth abortion in 1992, when 
Dr. Martin Haskell gave a presentation describing the procedure. A 
nurse who assisted him in a partial-birth abortion on a 26\1/2\ week 
fetus testified before the Senate Judiciary Committee of her experience 
with this procedure. It was shocking testimony. I am glad that Justice 
Kennedy included it in his majority opinion. I will not repeat it here. 
It was graphic. It was horrific. And it will stay with me forever.
  A 6-month-old fetus was treated worse than any animal--and disposed 
of like garbage. The American people were rightly appalled.
  It very well might be that there is some give in the seams of our 
Constitution. The meaning of every term and principle is not entirely 
clear. But if you are going to be making up constitutional rights 
without textual warrant, the American people understand what many law 
professors, radical--I mean, progressive--activists, and judges did 
not.
  It perverts our constitutional traditions to argue that a document 
committed to life, liberty, and the dignity of the human person would 
prohibit public condemnation and legal regulation of such barbarity. 
And the Court agreed.
  This was a reasonable and a limited decision. The Court rejected a 
facial challenge to the law. Relying on its precedent in Casey v. 
Planned Parenthood, the Court held that the law was not 
unconstitutionally vague and did not impose an undue burden on a 
woman's right to abortion.
  This was a reasonable decision, one rooted in a deep respect for the 
role of the people's representatives in Congress. And what is the 
response of the hard left? Hysteria.
  I know many of my colleagues in this body are familiar with the blog, 
Daily Kos. It is the online meeting room for the political left.
  The complaints of its members recently led a number of Democratic 
candidates for President to withdraw from a Fox News-sponsored debate. 
They were intimately involved in the debate in the House over how best 
to cut off funding for our troops. This is what one of these citizen 
agitators posted about the decision:

       The 5 Catholics on the court have ruled!! Why don't we just 
     outsource the Supreme Court to the Vatican. Save some money!!


[[Page 9327]]


  There was a time when this anti-Catholic venom had no place in our 
political discourse. Unfortunately, liberal groups are becoming more 
and more radical, and less and less liberal in their thinking.
  This is what Nancy Keenan, of the radical abortion-rights lobby 
NARAL, had to say:

       An anti-choice Congress and an anti-choice president pushed 
     this ban all the way to the Supreme Court.

  An anti-choice Congress? Is she kidding? Is the Democratic chairman 
of the Appropriations Committee anti-choice? Is the Democratic chairman 
of the Judiciary Committee anti-choice? Is the Democratic chairman of 
the Budget Committee anti-choice?
  Give me a break.
  The radicals criticizing this decision are seriously unmoored from 
the American people and our legal traditions. The radicals who support 
abortion on demand reject the choices of the American people. They 
reject the informed choice that the people's representatives made about 
this gruesome procedure. They are ``Johnny and Jane one-notes''--
abortion now, abortion always, abortion forever.
  The American people deserve better. We have been told by the new 
majority that America is done with partisanship. America needs results.
  Well, we got results with the Partial-Birth Abortion Ban Act. This 
was a bipartisan achievement that brought together Republicans and 
Democrats, conservatives and liberals. It is unfortunate, then, to see 
certain Democratic candidates bemoaning this decision in the same old 
terms.
  It is not too surprising to see the New York Times editorial page 
hyperventilating over this decision. But we deserve more from our party 
leaders and Presidential candidates. I understand their predicament. 
When you have to answer to uncompromising abortion-rights groups, logic 
sometimes gets tossed by the wayside.
  When President Clinton was in the White House, he abandoned almost 
every liberal group imaginable in his quest for triangulation. But 
there was one group that he would never cross--the abortion-rights 
lobby.
  And given the knee-jerk reactions about this decision from the 
leftwing blogosphere and Democratic candidates, I have no doubt that 
this commitment will not change. I think that is sad. But if they want 
to have a fight, the centerpiece of which is judicial administration of 
a judicially created right to abort your baby at any time during 
pregnancy, I am sure many will gladly meet them in the ring.
  I think that these overheated comments are particularly interesting 
in light of the legislation that we considered earlier today. I was an 
original cosponsor of the court security bill.
  Obviously, our judges need to be protected from violent criminals. 
They are public servants. And all too often they are threatened with, 
or subjected to, physical violence. This is unacceptable. And so I 
joined with many of my Judiciary Committee colleagues in supporting 
this bill.
  But I want to distance myself from some of the remarks made by my 
Democratic colleagues yesterday. The suggestion that strong and 
vigorous criticism of judicial decisionmaking is somehow inappropriate 
or collaterally responsible for violence against judges is absurd. 
Violence against judges is unacceptable. But violence against judges is 
not caused by criticism of judicial activism. And it is not caused by 
overheated rhetoric.
  I find it particularly ironic that on the same day that liberal 
pundits and interest groups are bemoaning a moderate and limited 
Supreme Court decision as the catalyst for making women second-class 
citizens, Democrats took to the floor to brand serious and vigorous 
criticism of judges as irresponsible.
  In the end, I think Justice Scalia was right in his Casey 
concurrence. So long as the Court went about doing what lawyers and 
judges are supposed to do--interpret the law--nobody gave the Supreme 
Court a second thought. But when the Court decided that it should be a 
super legislature that second guesses the judgments of the American 
people and their representatives, the Court invited criticism.
  You act like legislators, you get treated like legislators.
  If my colleagues would like to see less criticism of judges, maybe 
they should stop advocating an undemocratic and constitutionally 
ungrounded judicial activism.
  The people can criticize the courts. And their representatives can 
criticize the courts. If Lincoln did it, and FDR did it, I think we are 
on solid ground.
  But I am not going to criticize yesterday's decision. I would like to 
close by again applauding it. It was not just a victory for the unborn 
child. It was a victory for moderation and the rule of law.

                          ____________________