Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart.
What is curious about Reid's statement, as NPR and some news outlets have noted, is not Reid's criticism of Alito -- Reid opposed Alito's confirmation -- but the fact that Reid supported, and voted for, the federal statute upheld in yesterday's decision. Reid was one of 17 Senate Democrats voting in favor of the bill in 2003. Reid also voted in favor of a ban on partial-birth abortion in 1999 (see here) and , as indicated in this "Meet the Press" interview, Reid was one of only two Democratic Senators to vote against a resolution reaffirming Senate support for the holding of Roe v. Wade.
So, despite his repeated support of legislative restrictions on abortion, Reid's latest comment suggests that he believes the Supreme Court's decision was regrettable and wrongly decided, and that a law that he supported is unconstitutional. To me, the latter is of greater concern. Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it. While I believe it is permissible to vote in favor of a bill that one believes the Supreme Court will invalidate (a Senator need not agree with the rulings of the Supreme Court), I do not believe that a Senator should vote in favor of a bill the he or she believes should be struck down by the Supreme Court, and it is more than a minor inconsistency when a Senator laments a Supreme Court decision upholding a law which that Senator supported.
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