Editorials
Contents Volume CXIH, Number 2 Correspondence 34 Editorials 35 'Get beyond labels': Nancy Amidei 37 Attending to tradition: John Garvey 38 The Mideast: J. Bryan Hehir 40 III The return of...
...p. 36, Bas...
...dollars by International Money Order or by check on a U.S...
...At that time, we cited a then-recent study in the Yale Law Review by Charles L. Black...
...20018) is $25...
...In 1984, BFW's efforts helped prompt Congress to create a special Child Survival Fund as well, financing $25 million in basic health improvements for infants and children in developing countries...
...That proposal energized a large and vocal opposition, but even so, many of those lobbying the issue thought the first vote -- in the House Appropriations Committee -- might go either way...
...To members like Durbin, who are opposed to abortion but troubled by issues like teenage pregnancy, it's fundamentally irresponsible not to recognize the role that family planning can play...
...In 1970, President Nixon argued that the White House should not be "frustrated by those who wish to substitute their own philosophy or their own subjective judgment for that of the one person entrusted by the Constitution with the power of appointment...
...8, 1971...
...J, I I I ] I WHO WILL JUDGE THE JUDGES...
...In some cases, wc don't know enough about the Framers' intentions to apply them to modern problems...
...After all, the chief executive should be able to choose individuals of his or her own political outlook to carry out his or her own policies...
...and Mark Hatfield (R.-Oreg...
...bank...
...Fifteen years ago, Commonweal thought that this assumption of a restricted role for the Senate was wrong ("The Senate and the Court," Oct...
...And so, for very different reasons some among the pro-life and prochoice forces found themselves voting the same way...
...Most notable, of course, is Roe v. Wade, widely admitted even by liberal scholars who otherwise favor access to abortion to have been a dramatically unfounded substitution of Court power for legislative decision...
...it is undeniably well-buttered...
...p. 54, Bernie Tennis...
...Confusion has arisen largely from a mistaken analogy with the Senate's role in confirming appointments to the executive branch...
...As clarified in Committee Report language, under the Durbin amendment a family planning agency would not be in violation of the law if "'non-directive" counseling were given, on referral or request, for any legally available procedure, including abortion...
...But these same scholars can hardly accept Meese's alternative either, for all the kinds of reasons that Neal Devins and Benjamin Feder recently set forth in "Reading the Establishment Clause" (Commonweal, Sept...
...At present, federal regulations prohibit such public funding to be used for abortions, and the regulations allow only "nondirective" counseling or referrals to those seeking abortions...
...As a "Christian citizens' movement" founded over a dec'ade ago in light of the command to feed the hungry, Bread for the World has had a positive, dramatic effect on influencing Commonweal: 36national policy in regards to food assistance...
...Reagan -- or will it be Mr...
...but as Stuart Taylor, Jr., recently pointed out in the New Republic, "original intention" would probably "handcuff" the police far more than the Warren Court did, banning all kinds of searches, warrants, wiretaps, and subpoenas that Mr...
...10016 II Illustrations: Cover & pp...
...Politically, however, Durbin has found that "it doesn't buy 31 January 1986:37...
...Bread not for itself, nor for a limited constituency...
...On his own, he drafted an amendment to protect the family planning agencies...
...in the nineteenth century, it rejected one out of four presidential nominees...
...We cannot let our divergent views [on abortion] obscure the other serious health and societal issues affecting young poor women of childbearing age," they said...
...Nixon nominated G. Harrold Carswell for the Court, a columnist in Commonweal feared that the Senate would never reject such a dubious nomination "unless the man is proved either a blackguard or a legal incompetent so cretinous that mention of a tort puts him in mind of Viennese pastry...
...Not long after the national vote, 133 Maryland state legislators on both sides of the abortion debate asked their governor to increase funding for family planning, family support, and adoption services...
...We still do...
...Of 31 January 1986:35course, in their all-too-frequent cynical moments, lawyers like to say that the law is whatever judges say it is...
...Special two-year rate: U.S., $49...
...Debate about the first question has recently been provoked by Attorney General Meese's attack on the last sixty years of Supreme Court rulings and his demand that judges look to the "original meaning of constitutional provisions...
...Much later in the process Durbin agreed to drop his language, when Kemp agreed not to attach his original amendment to any other bill...
...But they won't last forever...
...Amid the Capitol's congested halls, one advocate stands apart with lean serenity...
...20, 1985) or Francis J. Flaherty outlined here four years ago in articles on abortion (Oct...
...Yearly subscriptions, U.S., $28...
...Peter Steinfels Assistant Editors: David Toolan, Karen Sue Smith, Patrick Jordan Production Editor: Anne Robertson Poetry: Rosemary Deen Movies: Tom O'Brien Staff: Karen F. Silva, Harriette Baisky, Patricia Mazzola Advertising Manager: Ruth E. Taylor Publisher...
...Much more recently, Lawrence M. Tribe has published God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History (Random House, $17.95, 171 pp...
...The best known instance occurred late last year when a new set of legislative restrictions proposed by Congressman Jack Kemp (R.-N.Y...
...10016...
...On what basis should those critical choices be made...
...foreign, $59...
...This view was widely enough held that, at the time Mr...
...The issue bringing (some might say "forcing") them together is family planning...
...Initially he acted out of a concern that Kemp-Hatch might bring down malpractice suits on health professionals who withheld information about abortion from certain family planning clients...
...This "jurisprudence of original intention" was immediately rejected as "facile historicism" by two of the sitting justices -- William J. Brennan, Jr., and John Paul Stevens...
...Ti)ere is certainly no evidence that the "original intention" ofihe Constitution's Framers was to restrict the purview of the Senate in considering Court nominees...
...They must sit in judgment on the constitutionality of executive acts as well as legislative ones...
...The Carswell nomination did not, in fact, go through...
...The present justices of the Supreme Court are a very enduring bunch -- this year they will set the record for the oldest Supreme Court in American history...
...And how should the power to make them be shared...
...Copyright 9 1986 Commonweal Foundation...
...The .candidate should not suffer from obvious ethical or intellectual deficits...
...Kemp-Hatch would have banned all counseling or referrals (whether done with public or private funds) and any organizational or contractual links between family planning agencies which receive public funds and institutions providing abortions...
...The president, of course, appoints new justices -- but "only with the Advice and Consent of the Senate...
...As far as we can see, the liberal critics are right...
...That it proved to be a major, 37-16, defeat for the eight-term Kemp, is credited to two Catholics with solid prolife voting records who are also strongly pro-family planning: Silvio Conte (R.-Mass...
...We say that despite our own unhappiness with a number of Supreme Court decisions frequently defended as "liberal...
...p. 45, LNS...
...they haven't...
...Indeed, prior drafts provided for appointment of judges by the Senate alone...
...Since 1793 (when the Court refused Washington's request for advice on legal details of the FrancoAmerican treaty), it has been clear that justices are not advisers to the president...
...But in fact there are other approaches to constitutional interpretation that avoid the inflexibility and sheer unworkability of "original intention" but still put limits on justices' preferences...
...The shortcomings of "original intention" do not mean that'justices should be free to read anything they like into the Constitution, thereby appropriating the p, ver to confirm or veto at will the decisions of democratically elected legislatures...
...That single act is credited with saving the lives of a quarter million children...
...II I I T COULD BE next week, or it could be next year, but sooner rather than later the country will be faced with another major turning point in its political composition...
...Single copy, $1.50...
...For some time it has been popularly believed that this process of advising and consenting should be quite limited...
...But the reaction Representative Durbin got from his colleagues may be instructive...
...Second-class postage paid at New York, N.Y...
...and Senator (h'in Hatch (R.-Utah) threatened virtually all publicly funded family planning activities...
...Thus, the Durbin amendment presented an alternative for pro-life members who also support family planning...
...It has been forced to cut back its staff and to ask friends for more generous assistance...
...Labyrinthine Washington may be well-fed...
...Durbin took another tack...
...That law makes adults financially liable for babies born to their minor sons and daughters, imposes criminal penalties for late-term abortions, and provides funds for sex education for teenagers...
...the Senate should confine itself to narrow questions, say, of conflict-ofinterest or legal competence...
...Liberal critics charged that Meese's scruples about constitutional theory were simply a cover for his political agenda...
...may soon have the opportunity to determine the character of the Court well into the next century...
...Black believed that there was no constitutional, historical, or prudential reason for senators not to consider an individual's broad social philosophy in deciding whether or not to confirm a nomination...
...All this is particularly relevant in the case of a president determined to "turn the Court around...
...They are part of a growing breed of legislators, nationally and in state legislatures, who are both pro-life and profamily planning...
...There are conservative judges liberals should be happy to see on the Court...
...Commonweal is indexed in Reader's Guide to Periodical Literature, Catholic Periodical Index, Index of American Periodical Verse, Book Review Digest and Book Review Index...
...Now BFW, in spite of its remarkable achievements and faithfulness, is facing lean times itself...
...Send address changes to Commonweal, 232 Madison Ave., New York, N.Y...
...a book that reinforces our earlier contention...
...And at home, 450,000 more women and children have been covered by WIC, the Special Supplemental Food Program for Women, Infants, and Children, thanks in part to the tenacity of BFW and its members...
...Washington report II II 'GET BEYOND LABELS' PRO-LIFE & PRO-FAMILY PLANNING I T ISN'T ALWAYS deliberate, and it isn't necessarily friendly, but within the political arena there are several recent instances when pro-life and pro-choice forces have found themselves on common ground...
...Meese may try to squeeze his particular conservative, law-and-order objectives into the Framers' "original intention...
...The Times wanted both president and Senate, however, to be concerned about matters of "stature," "breadth of vision," and "caliber...
...In 1984-85, for example, BFW led a successful nationwide campaign which culminated in the Africa Relief and Recovery Act, appropriating $800 milliofi for famine relief (enough food aid to feed ten million hungry people nearly a year), funds which last year surpassed all contributions to private relief organizations for African aid...
...In Wisconsin, observers commented on the "unprecedented discovery by pro- and anti-abortion forces of common ground" in their recently passed Abortion Prevention and Family Responsibility Act of 1985...
...but bread for the world...
...in other cases, changed circumstances reveal that the narrower, specific intentions behind one part of the Constitution may be in tension with larger intentions expressed in other parts of the Constitution...
...If the question of what philosophy should guide Supreme Court justices has been in the news, an equally important question has not: who should decide on this philosophy in the process of appointing justices...
...Edward S. Skillin Commonweal, [ISSN 0010-3330] A Review of Public Affairs, Religion, Literature, and the Arts, is published biweekly, except monthly Christmas-New Year's and July and August, by Commonweal Foundation, 232 Madison Ave., New York, N.Y...
...Just like "strict constructionism," that catchphrase of the Nixon years, "original intention" won't do the job...
...It also included language from the original Kemp amendment, permitting abortion when the life of the mother was endangered...
...41, 44, 46, 50, Emil Antonucci...
...Over in the Senate, where even members of the "pro-life caucus" like Williams Proxmire (D.-Wis...
...J J J J JJ | I commonwBal i I l l l l l l . I . . . . ; . - - I I - r I I I I ~,9...
...This absolute wall of separation between family planning and abortion could have paralyzed the family planning services of public health departments and clinics as well as private agencies like Planned Parenthood...
...It would be solid nutrition for thought and action in the new year...
...The nature of its concern is that peculiar daily necessity: bread...
...POSTMASTER...
...To rise and converge, legislation must pass, as in peristalsis, not only across the major trading floors, but through the endless lobbies...
...Canada, $53...
...The Senate's restricted conception of its role is relatively recent...
...Meese's Justice Department uses daily -- as well as possibly banning federal paper currency, civil-rights laws, and most of the president's war-making powers...
...In The Federalist Papers, Alexander Hamilton noted that the Senate's role in the appointments process generally could be "an efficacious source of stability" in the face of a presidential effort to reverse completely the direction of government...
...and Dick Durbin (D.-III...
...Committee members, including several that he barely knows, thanked him warmly for taking a stand that had to be taken, while giving them an intellectually defensible alternative to vote for...
...Had he the time, he might have expounded that where there are legislatures, there are lobbyists...
...p. 34, Valerry...
...Many have responded, but the loaves still need multiplying...
...All Canadian and foreign subscriptions must be paid in U.S...
...foreign, $33...
...it did not specify what these terms meant...
...The fact that the Court is always better off with some mix of conservative and liberal voices should rule out a narrow political standard by either president or Senate...
...Telephone: (212) MU 3-2042...
...A basic membership in Bread for the World (802 Rhode Island Avenue, NE, Washington, D.C...
...p. 43, USCC...
...In a thoughtful review of Tribe's book in the December 16 New Republic, Duke University law professor Walter Hellinger summarizes the Senate's responsibility in considering nominees to the Court: "A senator certainly ought to probe for evidence of intelligence, integrity, and open-mindedness -- a willingness to be persuaded by cogent argument . . . . But when a president does attempt to direct the Court's future course by submitting a nominee known to be committed to a particular philosophy, it should be a completely ~ufficient basis for a senator's negative vote that the nominee's philosophy is one the senator believes would be bad for the country...
...BREAD AT THE BONE A dying man once said that, "Where there is a will, there are relatives...
...To many family planning supportaers, 1985 was a particularly difficult year, and 1986 begins on shaky ground for their funding...
...the Senate should limit itself to questions of basic integrity and competence...
...Contents Volume CXIH, Number 2 Correspondence 34 Editorials 35 'Get beyond labels': Nancy Amidei 37 Attending to tradition: John Garvey 38 The Mideast: J. Bryan Hehir 40 III The return of 'mystery': Robert Imbelli 41 'So far, so b a d . . . ' : Elisabeth Schfissler Fiorenza 44 Chorus of the hemispheres: Matthew L. Lamb 46 What to do with a 'convergence': John Deschner 50 Screen: Tom O'Brien 52 I I Books Ferraro: Mary C. Segers 54 Taking Sides: Peter Steinfels 58 Staff I Editor...
...it was only late in the game that the president was brought in at all...
...This expanded conception of the Senate's role should not be seen as carte blanche for simple political partisanship...
...The Supreme Court, by contrast, is the pinnacle of an independent branch of our government...
...found the notion of gutting family planning too extreme, Kemp-Hatch never came to a vote...
...fddbq 6 v ~ :llnnl|mm -'-" , . . ' . . - I l i a D...
...Conte made an extremely eloquent and effective speech on behalf of family planning...
...But a year later the New York Times still editorialized that the president "is free to appoint justices who share his legal philosophy" and "whose broad philosophical outlook reflects his own...
...It's not that pro-life and pro-choice forces have come to a complete agreement on family planning...
...Canada, $30...
...Meese...
...23, 1981), and on church-state separation (April 23, 1982...
Vol. 113 • January 1986 • No. 2
