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Supreme O'Connor's last stand and the bias of a 5th Circuit Court judge

"We do not revisit our abortion precedents today ..." - Supreme Court Associate Justice Sandra Day O'Connor, Ayotte v. Planned Parenthood of Northern New England

The week before senators plan to vote on the man who is likely to take her seat on the Court, the Supreme Sandra Day O'Connor wrote the unanimous Court's opinion that the state of New Hampshire has overreached in its requirement that all minors inform their parents 48 hours before an abortion, without exception for a minor's health.

In her wrap-up of Ayotte v. Planned Parenthood of Northern New England, O'Connor wrote: "Under our cases it would be unconstitutional to apply the act in a manner that subjects minors to significant health risks." For the full story and the questions raised now that the case is headed back to the 1st Circuit in Boston, read The AP's Gina Holland here.

Holland raises the question of how this vote might change, were Nominee Sam Alito on the court, given his refusal in hearings last week to state that the right to legal abortion guaranteed in Roe v. Wade is the settled law of the land.

Alito was a fair bit more circumspect than 5th Circuit Judge Harold DeMoss who recently wrote this article accusing the Supreme Court of usurping the rights of voters to approve or deny what he considers to be constitutional change -- in his opinion, that document does not guarantee a right of privacy (nee abortion).  I found this eyebrow-raising article, courtesy of Michael Cernovich, who raises an excellent question:

"Is it appropriate for a sitting federal judge to write such articles, and call for such a national referendum?  In the last paragraph of the article, Judge DeMoss seems to suggest that he is writing the article in his individual capacity, noting that (emphasis added): "As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise."  Yet the byline of the article read "By Judge Harold R. DeMoss Jr."

"Given that Judge DeMoss is on the record as opposing the right to privacy, doesn't anyone litigating this issue in the Fifth Circuit have a reason to move for his recusal?  How can he claim to be impartial in right-to-privacy cases?  He would likely counter with the rejoinder that he would follow Supreme Court precedent.  But if there is no precedent on point, can't we be reasonably sure that, in light of his comments, he will absolutely side against the party seeking to extend the right to privacy?" More here.

Amen. I would love to hear from blawggers who have thundered about the difference between an attorney's role in service to a client and the appropriate circumspection of a judge fulfilling a very different job description. This judge purports to act as a citizen, while carrying the mantle of the bench. That is a very poor reflection indeed on the 5th circuit -- and Mr. DeMoss. I wonder what his colleagues have to say about his affect on that court's credibility and future work.

What do you think?

Posted by Laurel Newby on January 18, 2006 at 02:22 PM | Permalink | Comments (6) | TrackBack (0)


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