Results vs. Process

In the recent oral arguments before the Supreme Court on the challenge to the federal partial birth abortion ban, Justice Ginsberg allowed a brief glimpse into the workings of a liberal justice's mind in the exchange below. Justice Scalia, per usual, nails the issue on the head:

JUSTICE GINSBERG: Because your time is running out I did want to ask you about a feature of this legislation that hasn't come up so far, and that is perhaps stimulated by Stenberg. But up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

GENERAL CLEMENT: Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context.

JUSTICE GINSBERG: Well I know, when it is a question of funding -

GENERAL CLEMENT: Well but also access to clinics, in the the face act, which is also -

JUSTICE SCALIA: The best example where government has gotten involved in overriding what the states want to do is Casey. It seems rather odd for this Court to be concerned about stepping on the toes of the states.

With a liberal judge, the outcome is what matters, not the process. Justice Ginsberg, a former ACLU lawyer and Clinton appointee, is a reliable pro-abortion vote on the Supreme Court. Roe vs. Wade, which she has consistently voiced support of, is a prime example of federal overreach into state matters. Here, however, when given the chance to strike down a law banning a particularly hideous type of abortion procedure, she suddenly sees the light and asks whether the federal government is overreaching. The sudden epiphany has nothing to with a change in judicial philosophy. It is only a cynical, and guaranteed brief, change in heart to protect one of her pet issues from losing some ground.

I wonder how she can rationalize that it is federal overreach to take one procedure away from the toolkit of abortion doctors, but not overreach to hand them the whole toolkit in the first place, in spite of the states' rights. Justice Scalia has taken out his own hammer from his rhetorical toolkit and bonked his fellow jurist right on the head with it.

ADDENDUM: Notice in the official transcript above, Solicitor General Paul Clement is referred to as "General Clement." Is the Solicitor General a "general" or a "solicitor"? This is one of my all-time pet peeves. See Orin Kerr's discussion of the phenomenon here. The man is just an attorney, not a commissioned military officer. The "general" in the title, as I understand it, refers to his status as lawyer who handles general legal issues on behalf of the government. He's a jack of all legal trades, not a master of strategic battle planning.

The one "general" position that has taken this "general" business a step too far is the Surgeon General. He/she actually wears a military uniform.