In the Agora: "Justice" Garza?

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July 01, 2005

"Justice" Garza?

Should Judge Emilio Garza be nominated, as many insiders predict, his jurisprudence will soon become the focal point of Washington, and ITA 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.

Posted by Joshua Claybourn at July 1, 2005 11:18 AM

Comments

I actually do wish they would overrule RvW. It's not an issue for me (I'm gay) but it is a major distraction. Get rid of it.

I'm also a MA resident, so it won't be an issue for me.

But, let's get something--straight. If someone wants to outlaw abortion, the outlawing should include everyone involved. Most of the rhetoric regarding outlawing of abortion relates to jailing of doctors. They seem to eschew the jailing of the women who would be undergoing illegal abortions. And the impregnators. And the people--usually men--who are paying for the abortions. Consistency would demand that all of them be thrown in jail. Not just the doctors.

The Republican federal legislators seem to limit their venom on the doctors. To me, that is hypocritical. There are a number of actors in the abortion process, and the anti-abortionists appear to want to exonerate most of them out of hand.

BTW, this is not an issue that is foreign to me. My mother in law had several pre-Roe abortions at the behest of her husband. Fortunately they allowed my spouse to live. And, fortunately, the person who conducted the abortions did so carefully enough that she is still alive.

Posted by: raj at July 1, 2005 06:36 PM | permalink

I gotta wonder about his 14th Amendment credentials if he supported the constitutionality of FACE: the nominal protections in FACE apply solely to reproductive health service providers (shouldn't the term be "antireproductive health services?") and places of worship, and not to any other institution. So I can do stuff during an auto plant strike that I can't do at a church or abortion clinic. (The use of vague terminology in the law - "intimidate," "interfere" - also raises red flags.)

Posted by: Alan K. Henderson at July 1, 2005 11:48 PM | permalink

A perfect example is a law recently passed by the legislature of Kansas. It added many requirements to abortion clinics, claiming to be doing so in the name of the health of the women who went to the clinics. The Democratic governor said that she would veto it unless they made the regulations apply to all clinics that performed minor surgery, not just the abortion clinics. They refused, revealing for anyone who had any doubts what the real issue was and she did veto it. They couldn't come up with the votes for an override.

Posted by: Jim S at July 2, 2005 10:02 AM | permalink

Jim,

Do you have the bill number etc. for the legislation you mentioned?

Posted by: Jonathan Bunch at July 2, 2005 10:07 AM | permalink

Emilio Garza still lives in San Antonio, Texas and remains unmarried. He was in a long engagement several years ago toa white woman, but she backed out at the last minute. His family ran a chain of low-income neighborhood loan shark offices. He was in a silk stocking old-line San Antonio law firm because of his Notre Dame degree. His addition to the Court wouldl bring it itx first member since Thurgood Marshall who has ever tried a jury case. While with Clemons, Knight he did most of the work for the insurance company that represented Santa Rosa hospital, involving mostly medical malpractice claims. He would be a decidedly rigid Roman Catholic voice on the Court. If he is not already a member, Justice Scalia would likely invite him to join Opus Dei. Randolph Fuller

Posted by: randolph fuller at July 3, 2005 06:38 PM | permalink

Your last mailing on Garza fairly dripped contempt(rigid Roman catholic..family loan shark offices,Opus dei,etc.)
Garza was, in fact an UNPAID ethical/legal advisor to Santa Rosa childrens hospital,and for an order of Catholic nuns.His father also organized Baseball and Basketball games to raise money for local charities.
Garzas record at Notre Dame was excellent..deans list, BA with honors in political science

Posted by: Joseph Harder at July 22, 2005 10:42 AM | permalink