Blackadder’s Lair

The home of many a cunning plan

Vacant Justice II

On Saturday, I talked about the likelihood that a President McCain or a President Obama would have the opportunity, if elected, to appoint Supreme Court Justices. Today I’d like to talk about the kind of justices they’d be likely to appoint. As with my previous post, I’ll be confining myself to considering whether such justices would be likely to overturn Roe v. Wade if given the chance (I focus on Roe not because I think other matters are unimportant, but because of the central role that the President’s ability to nominate Supreme Court Justices plays in many Catholics thinking on abortion and voting. For an analysis of whether overturning would actually reduce the abortion rate, see here).

I don’t think there’s much doubt that the Justices a President Obama would appoint to the Court would be pro-Roe. He has said as much, and previous experience with President Clinton’s nominees shows that Democrats tend to keep their word on such a pledge.

What about a President McCain? At this point, it is common for certain folks to point to all the pro-Roe justices appointed by Republican Presidents. And you know what? These folks are absolutely right. If you look at the judges nominated for a position to the Supreme Court since Roe (Stevens, O’Connor, Scalia, Bork, Ginsberg, Kennedy, Thomas, Souter, Roberts, Miers, and Alito) only about half either are or probably would have been anti-Roe votes on the Court. And while you can attempt to exonerate Republican Presidents on some counts (Kennedy, after all, was a third pick, and there was no evidence at the time he wouldn’t vote to overturn Roe) or at least get the charges knocked down to a lesser charge (however bad Souter, O’Connor, and Kennedy are, they have allowed more restrictions on abortion than were allowed prior to their appointments), the hard fact of the matter is that Republican Presidents have done a lousy job of picking good Supreme Court Justices.

Nevertheless, I’m optimistic that the judges McCain would nominate to the Supreme Court would probably be pro-life, not because I think he is more committed to overturning Roe than previous Republican Presidents (if anything, I’d say he’s less committed to doing so), but because I think that pro-lifers and conservatives have learned form past mistakes. During the Reagan and Bush I administrations, the basic strategy adopted by conservatives and the pro-life movement was to support whoever the President nominated, on the theory that a Republican President could be trusted to only nominate solidly anti-Roe judges. That all changed on June 29, 1992, when the Supreme Court handed down its decision in Planned Parenthood v. Casey. Conservatives and pro-lifers were dismayed that Justices Kennedy, O’Connor, and Souter had voted to uphold Roe (even on a modified basis), and since then, those opposed to Roe have greeted the prospect of “another Souter” being appointed to the Court in a Homer Simpson like fashion. As the Harriet Miers nomination shows, conservatives are quite willing now to oppose a Republican President’s Supreme Court nominee if they are not convinced that judge’s conservative and anti-Roe convictions. And, as the Miers nomination also shows, a Republican President cannot get a nominee appointed unless he has the support of his conservative base.

For this reason, I suspect that the Supreme Court judges nominated to the Supreme Court by a potential McCain administration would be more likely to be anti-Roe than simply looking at the past record of Republican Supreme Court nominees would suggest. But even if I’m wrong about that, there is still around a 50% chance (based on past performance) that a Republican nominated judge will vote to overturn Roe v. Wade given a suitable opportunity to do so. And that is 50% better than under an Obama administration.

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October 27, 2008 - Posted by | Abortion, Election, Law

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