NY Times Equates Conservative Constitutionalism with Liberal Judicial Activism
By Don Feder
Wednesday October 29, 2008

In an article today, The New York Times continues to distort the debate over judges by equating constitutionalists on the U.S. Appeals Court to judicial activists.

To illustrate what it calls conservative judicial activism, The Times cites a recent decision of the U.S. Court of Appeals for the 8th Circuit upholding a South Dakota law requiring informed consent for women seeking an abortion.

Under the law, doctors must explain to women that abortions “terminate the life of a whole, separate, unique human being.” In upholding the law, the Appeals Court overturned a district court decision which held the measure somehow violated physicians’ free-speech rights.

In reality, what The Times calls conservative activism is simply supporting democracy and Original Intent (what the Constitution’s drafters intended).

Take abortion, which The New York Times would do anything to protect. When a court tries to limit this so-called right, The Times labels it conservative activism.

But, it was judicial activism that created the “right” out of thin air, in Roe v. Wade. Edward Lazarus, who clerked for Supreme Court Justice Harry Blackmun (the author of Roe), admits, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”

The impetus for this article, “Appeals Courts Pushed to Right by Bush Choices,” is to remind readers that all good progressives need to push for the election of Barack Obama, to save the courts from right-wing ideologues.

Try to imagine The Times running a story during the 2000 election headlined “Appeals Court Pushed to Left by Clinton Choices.”

As far as The New York Times is concerned, the federal bench is never pushed to the left. Decisions like Roe are the result of sound constitutional scholarship. Threats to freedom come only from the right.

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