Mixed Signals

When President Bush announced Monday that he was tapping Samuel Alito Jr. for the Supreme Court, the first question on the minds of many Americans was simple: Does his nomination imperil abortion rights? Alito's 90-year-old mother seemed to confirm liberals' worst fears when she said of her son, "Of course he's against abortion."One can oppose abortion privately without committing to overturn Roe v. Wade. And, indeed, a close reading of Alito's record complicates any attempt to portray him as a firm opponent of Roe. In Planned Parenthood v. Casey, the Supreme Court struck down a Pennsylvania statute that required wives to inform their husbands of their plans to seek an abortion. Before the case arrived at the Supreme Court, it passed through the Third Circuit, where Alito argued (in a dissent) that spousal notification was not an "undue burden" on a woman's ability to procure an abortion. But Alito's dissent was not ideological and did not show any disrespect to governing Supreme Court abortion precedent. On the contrary, Alito's analysis was a careful application of the framework for considering what constitutes an "undue burden" laid out by Justice Sandra Day O'Connor in several of her decisions. Then, in 2000, in Planned Parenthood v. Farmer, Alito penned a concurrence further displaying judicial modesty. He applied an opinion from the Supreme Court, Stenberg v. Carhart, to strike down as unconstitutional a New Jersey partial-birth abortion law. It's worth comparing Alito's respect for Stenberg to Justice Antonin Scalia's earlier dissent in that very case: "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott," Scalia wrote. Later in the opinion, he wrote bluntly that "Casey must be overruled." Until last week, the world was drifting toward a reluctant acceptance of Iran as a nuclear state. But, last Wednesday, Iranian President Mahmoud Ahmadinejad, with some help from Tony Blair, transformed the debate. True, there is still no good option for dealing with Iran; but, for the first time, the international community seems to be grasping that a nuclear-armed Tehran is the very worst option of all. And that gives Bush and Blair a much better chance of winning with a bad hand. Ahmadinejad's declaration that "Israel must be wiped off the map" did not signal a shift in Iranian policy. Blair, though, saw the opportunity the comments presented and used an informal European Union summit to push Europe into a more hawkish stance on Iran. A joint statement by the EU leaders noted, "Calls for violence, and for the destruction of any state, are manifestly inconsistent with any claim to be a mature and responsible member of the international community." Blair then personally went further: "Anyone in Europe, knowing our history, when we hear statements like that made about Israel, it makes us feels very angry, it's just completely wrong.... Ask yourself: A state like that, with an attitude like that, having a nuclear weapon?" Blair's framing of the issue was typically astute: Allowing Iran to develop a nuclear bomb would be tantamount to accepting a nuclear holocaust of the Jewish state; and European opinion has thus far embraced the sentiment. * Ethan J. Leib is a law professor at the University of California's Hastings College of Law. * James Forsyth is assistant editor at Foreign Policy. For complete articles, go to tnr.com

By Ethan J. Leib; James Forsyth