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Sapere aude - dare to be wise
Wednesday, July 06, 2005
"Justice" Garza?
Posted 5:58 PM by Joshua Claybourn
Should Judge Emilio Garza be nominated, as many insiders predict, his jurisprudence will soon become the focal point of Washington, and we might as well help kick off the inspection. Judge Garza currently sits on the 5th U.S. Circuit Court of Appeals. He was educated in Indiana at Notre Dame and, later, the University of Texas School of Law. Garza was considered for the Supreme Court by the previous President Bush.

Judge Garza's stance on abortion may be his most interesting aspect, and also the stance that will help him survive a brutal nomination process. Judge Garza has voted according the dictates of Roe v. Wade's precedent, which at the outset reflects a respect and deference to precedence (something that has tripped up other nominees). But in two opinions involving Louisiana's abortion laws - Sojourner v. Edwards (1992) and Causeway Medical Suite v. Leyoub (1997) - he still voiced passionate hostility to abortion jurisprudence. He wrote, "Casey [another prominent abortion case] is not about abortion; it is about power." And he argued the Court made an illegitimate "political choice" that moves toward "systematically eliminating checks upon its own power." In Okpalobi v. Foster (2001), he refused to strike down a Louisiana law imposing strict liability on abortion providers for any injury to the mother or the unborn child, but he also held just this year in U.S. v. Bird (2005) that the Freedom of Access to Clinic Entraces Act was a valid exercise of congressional authority under the Commerce Clause.

There is little doubt that Judge Garza would vote to overturn Roe v. Wade, but it should also remain clear that Garza is no radical on the subject and carries a respectable position. Understanding his role on the Circuit Court, he has dutifully followed the precedent he is bound to follow, while making clear his disagreement when permitted.

Nevertheless, it doesn't appear as though Garza would object to individual states permitting abortions to take place. If there's one thing that sums up Judge Garza's jurisprudence, it's respect for states' rights, not just on abortion, but on other issues as well. In Causeway Medical Suite v. Ieyoub he expressed concern that the Supreme Court's broad readings of the word "liberty" in the Constitution "have slowly eroded the scope of public debate." He argued that if the Court had stayed out of various arenas - marriage, child rearing, school curricula, abortion, etc. - state laws might have changed "as public attitudes changed." Instead, "the people's Constitution - at least as to unenumerated constitutional rights - has become the Court's Constitution." I, for one, like Judge Garza and would support his nomination to the high court.

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