Jurist Prudence?
Bush’s judges on abortion.
"I don't believe in liberal activist judges. I believe in strict constructionists. Those are the kind of judges I will appoint. I've named four [Supreme Court justices] in the State of Texas, and ask the people to check out their qualifications, their deliberations. They're good, solid men and women who have made good, sound judgments on behalf of the people of Texas."
—George W. Bush, first presidential debate
In any other year, the governor's invitation to study the deliberations of the Texas Supreme Court would have been an insomniac's delight—a journey into the mundane world of oil and gas disputes, business contracts, and insurance squabbles. But with abortion rights looming as a major issue in the presidential campaign and three or four U.S. Supreme Court justices expected to retire in the near future, leaving vacancies to be filled by the next president, the views of Bush's appointees to the Texas high court have suddenly become relevant. In the debate, Vice President Al Gore charged that Bush's appointees would abandon the landmark abortion-rights decision of Roe v. Wade. Bush rejoined that he will have no "litmus test" for his nominees—but his endorsement of "strict constructionists," as Gore saw it, was a coded message for abortion foes that his judges would be pro-life.
What role does the Supreme Court of Texas play in all this? A big one, it turns out. The all-Republican court became engulfed in the white-hot issue after the state's new parental-notification law took effect, forbidding a physician from performing an abortion on a minor girl without notifying the girl's parents. But legislators, bowing to a U.S. Supreme Court opinion, had to provide for an exception: A girl could seek permission from a local judge as an alternative to parental notification under certain circumstances—if she was "mature and sufficiently well informed" to make the decision on her own or if notifying her parents would lead to abuse or otherwise would not be in her best interest. What happens if a judge refuses to grant this "judicial bypass," as it is known? In a succession of rancorous opinions, the court's usual air of collegiality disintegrated over the cases of several teenage girls who appealed the denials of their requests.
Three of Bush's appointees (Deborah Hankinson, Al Gonzales, and James Baker) agreed the words in the law mean what they say and that judges have to grant a bypass if a girl meets the standards. This strict-constructionist ruling had the effect of making it relatively easier for girls to obtain abortions—thereby outraging pro-lifers. In one dissent Bush appointee Greg Abbott accused the court's majority of ignoring the Legislature's intent to include parents in the decision, urging the court "to abandon its interpretive hand-wringing and simply apply the true legislative intent . . ." Both sides claimed the other had allowed personal passions to cloud sound legal thinking.
Most outraged was pro-life Justice Nathan Hecht, who called the court's opinions an "assault on the fundamental, constitutional rights of parents and families that the Legislature attempted to protect with the Parental Notification Act." Later he wrote, "The basis for the Court's five parental notification decisions is the majority's deep-seated ideology that minors should have the right to an abortion without notice to their parents, free of any significant restriction."
In a subsequent opinion, Justice Craig Enoch didn't take the tongue-lashing lying down. "When influenced by emotions, a judge loses the judicial perspective . . . Deep convictions do not excuse a judge from respecting his colleagues, the litigants, or the law," Enoch wrote, sounding like a strict-constructionist admonishing a liberal activist, although Hecht is regarded as the court's most conservative judge.
"I don't believe in liberal activist judges. I believe in strict constructionists. Those are the kind of judges I will appoint. I've named four [Supreme Court justices] in the State of Texas, and ask the people to check out their qualifications, their deliberations. They're good, solid men and women who have made good, sound judgments on behalf of the people of Texas."
—George W. Bush, first presidential debate
In any other year, the governor's invitation to study the deliberations of the Texas Supreme Court would have been an insomniac's delight—a journey into the mundane world of oil and gas disputes, business contracts, and insurance squabbles. But with abortion rights looming as a major issue in the presidential campaign and three or four U.S. Supreme Court justices expected to retire in the near future, leaving vacancies to be filled by the next president, the views of Bush's appointees to the Texas high court have suddenly become relevant. In the debate, Vice President Al Gore charged that Bush's appointees would abandon the landmark abortion-rights decision of Roe v. Wade. Bush rejoined that he will have no "litmus test" for his nominees—but his endorsement of "strict constructionists," as Gore saw it, was a coded message for abortion foes that his judges would be pro-life.
What role does the Supreme Court of Texas play in all this? A big one, it turns out. The all-Republican court became engulfed in the white-hot issue after the state's new parental-notification law took effect, forbidding a physician from performing an abortion on a minor girl without notifying the girl's parents. But legislators, bowing to a U.S. Supreme Court opinion, had to provide for an exception: A girl could seek permission from a local judge as an alternative to parental notification under certain circumstances—if she was "mature and sufficiently well informed" to make the decision on her own or if notifying her parents would lead to abuse or otherwise would not be in her best interest. What happens if a judge refuses to grant this "judicial bypass," as it is known? In a succession of rancorous opinions, the court's usual air of collegiality disintegrated over the cases of several teenage girls who appealed the denials of their requests.
Three of Bush's appointees (Deborah Hankinson, Al Gonzales, and James Baker) agreed the words in the law mean what they say and that judges have to grant a bypass if a girl meets the standards. This strict-constructionist ruling had the effect of making it relatively easier for girls to obtain abortions—thereby outraging pro-lifers. In one dissent Bush appointee Greg Abbott accused the court's majority of ignoring the Legislature's intent to include parents in the decision, urging the court "to abandon its interpretive hand-wringing and simply apply the true legislative intent . . ." Both sides claimed the other had allowed personal passions to cloud sound legal thinking.
Most outraged was pro-life Justice Nathan Hecht, who called the court's opinions an "assault on the fundamental, constitutional rights of parents and families that the Legislature attempted to protect with the Parental Notification Act." Later he wrote, "The basis for the Court's five parental notification decisions is the majority's deep-seated ideology that minors should have the right to an abortion without notice to their parents, free of any significant restriction."
In a subsequent opinion, Justice Craig Enoch didn't take the tongue-lashing lying down. "When influenced by emotions, a judge loses the judicial perspective . . . Deep convictions do not excuse a judge from respecting his colleagues, the litigants, or the law," Enoch wrote, sounding like a strict-constructionist admonishing a liberal activist, although Hecht is regarded as the court's most conservative judge.
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