When the Supreme Court Wednesday upheld the Partial BirthAbortion Ban Act passed by Congress in 2003, Senate Majority LeaderHarry Reid told a press conference: "I would only say that thisisn't the only decision that a lot of us wish that [Justice Samuel]Alito weren't there and [former Justice Sandra Day] O'Connor werethere." Does that mean Reid was repudiating his Senate vote for thebill restricting abortions? No, he told me Thursday, he was talkingabout other decisions by Alito.
Reid, an effective legislator and canny politician, reflects adilemma on abortion among Democrats who are flying high againstdispirited Republicans. Delivering a fetus and then crushing itsskull, a procedure called "partial birth abortion" by its critics,is massively unpopular. Its prohibition is favored 61 percent to 28percent in the most recent poll (Fox News, March 2006). The lateSen. Daniel Patrick Moynihan, who was pro-choice, called thepractice "infanticide." But the abortion rights lobby is adamantagainst any erosion of the Roe vs. Wade decision.
The leading Democratic presidential candidates -- Sen. HillaryRodham Clinton (who voted against the ban in 2003), Sen. BarackObama, former Sen. John Edwards and New Mexico Gov. Bill Richardson -- lashed out against last Wednesday's ruling. The party's tone wasset on the House floor Thursday by Rep. Carolyn Maloney, whorepresents the "Silk Stocking" district of New York includingManhattan's Upper East Side: "We need to stand up to right-wing,conservative extremist efforts and protect the basic rights ofwomen."
But 17 Democratic senators voted for the Partial Birth AbortionBan Act (as it passed, 64-34). Their ranks included Sen. PatrickLeahy, the current Judiciary Committee chairman, and Sen. JosephBiden, a former chairman -- both rated 100 percent for 2006 votingby NARAL Pro-Choice America. Biden, who is running for president,and Leahy seldom withhold their comments on anything. But they havebeen silent on the court's abortion decision.
Reid, another of the 17 Democrats, had a 65 percent pro-choicerecord in 2006. He tried to resolve his quandary last week by notingthat the Supreme Court's 5-4 lineup on partial birth abortionflipped when Alito replaced O'Connor last year (with Reid opposinghis confirmation). Reid's public preference for O'Connor over AlitoWednesday was widely interpreted as backtracking on his 2003 vote.The Roll Call newspaper said Reid "seemed to think the SupremeCourt's decision was unwise."
"Not at all," Reid told me, when I asked him. Recalling his manyvotes against partial birth abortion, he indicated he supported thecourt's abortion decision. "I just don't like what Alito has done onother cases," he said. What other cases? "I can't recall," Reidreplied, but promised aides would let me know.
They did so several hours later. Out of more than 50 decisionsparticipated in by Alito, I was told Reid disagreed with four ofthem. They include Alito dissents, in 5-4 opinions, on mandating thefederal government to consider global warming and the Hamdan casegranting habeas corpus rights to U.S. detainees. Alito concurred ina 5-4 decision limiting federal regulation of wetlands and wrote themajority opinion in a 6-3 outcome (concurred in by usually liberalJustice Ruth Bader Ginsburg) rejecting federal funding of aneducational consultant under the disabilities act. But there is norecord of Reid criticizing Alito's court opinions before lastWednesday.
Thomas Carper, the low-profile junior senator from Delaware,tries to walk down the middle of the road on abortion. He was rated55 percent pro-choice in 2006, but was one of the 17 Democratsvoting to ban partial birth abortion three years earlier. Sometimesdisarming in his comments, he said last week after the court upheldthe 2003 bill: "I think a number of people who voted for it thoughtthat the court would ultimately strike it down."
Carper's comment pointed to Democrats who are partial pro-liferswhen it comes to partial birth abortion. The presence of Alito onthe court instead of O'Connor undermines that posture. The party'spresidential candidate will be on record for partial birth abortion.How many Democrats will follow in 2008?
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