Spotty SCOTUS Scouting

In 1992, five Supreme Court Justices stared more than 20 million executions directly in the eye, and unblinkingly declared that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

With those fulsome words, Roe v. Wade survived for another day. As I have previously written, even had Roe been overturned, the battle for the right to life would have been far from over. Roe is not, contrary to pro-choice propaganda, the be all and end all. The failure of Initiative 26 in Mississippi is quite tangible proof of this. But overturning Roe is a critically important first step, and the fact that the 1973 decision is still on the books is one of the pro-life movement’s greatest failures of the last forty years.

Who were those five Justices who saved Roe in 1992, and how did they make it to the Supreme Court? Were they liberal Democratic appointees, rammed through the Senate in a series of close votes? No, they were not. The chilling truth is that every last one was a Republican appointee. Four out of the five were appointed by presidents who publicly called for Roe to be overruled. Four out of the five were also confirmed in unanimous Senate votes. The lone exception, David Souter, had nine votes cast against his confirmation, but all were by pro-choice Democrats.

The case of Justice Blackmun is excusable. At the time of his nomination in 1970, abortion was just starting to become a judicial issue. Neither president Nixon, Senate Republicans, nor the nascent pro-life movement could have possibly foreseen how disastrous the appointment would turn out to be. But the pro-life movement’s apathy during later nominations is far less defensible.

The nomination of John Paul Stevens in 1975 represented the end of an era. It was the last nomination to largely escape the scrutiny of special interest groups. The confirmation hearing were short and perfunctory, and abortion was barely mentioned. It seems ridiculous now, but at the time passing a human life amendment looked easier to pro-lifers than getting an anti-Roe majority on the Court. Remember, Roe was a 7-2 ruling, and none of the 6 remaining pro-Roe Justices appeared likely to retire any time soon. But a bit of long-term thinking would have done a lot of good. In fact, it might not have even been all that long. Had Ford nominated a solid pro-lifer in 1975, and had Reagan nominated a solid pro-lifer in 1981, Roe may well have been overturned as soon as 1983, with Burger as the fifth vote due to lobbying from the two new pro-life Justices.

The confirmation of Sandra Day O’Connor in 1981 is perhaps the most tragic one of all, because it was the only time the pro-life movement even tried. O’Connor was a total cipher, but by sheer luck, she happened to go to the same church as Dr. Carolyn Gerster, a former president of the NRLC. Gerster knew all about O’Connor’s pro-choice votes as a member of the Arizona legislature, and made sure that Republican Senators knew about them. During confirmation hearings, Senators East of North Carolina, and Denton of Alabama grilled O’Connor about Roe, essentially giving her a choice of pledging to overrule it, or losing their vote.

Ronald Reagan, instead of reconsidering his nomination, reacted defensively, and his administration badgered several wavering Republicans into supporting O’Connor. Denton was the final holdout. Told he would look like a fool if he cast the only ‘no’ vote, Denton gave in against his better judgment. And thus with a whimper ended the first and only occasion when the pro-life movement has ever seriously opposed a Republican nomination.

The pro-choice lobby gave Scalia a free pass in 1986, but one year later, they showed how the politics of judicial selection are supposed to work during the confirmation hearings of Robert Bork. There was Ted Kennedy, less than an hour after Bork’s selection, grousing that his “America is a land in which women would be forced into back-alley abortions.” Then, there were many months of Ivy League academics testifying that Bork’s criticism of Griswold v. Connecticut demonstrated extremist tendencies.

After Bork went down in flames, Anthony Kennedy flew through with no discernible opposition from either party. Although the Bork nomination is often considered a low point in American political history, I happen to think the pro-choice interests groups had the right idea. With Supreme Court spots coming open so rarely, the ends justify the means, especially if it’s the difference between a Bork and a Kennedy. The pro-life movement should have fought Stevens, O’Connor, and Kennedy as strongly as the liberals fought Bork. Instead, Senators like Jesse Helms, Orrin Hatch, and Strom Thurmond voted for all of them.

The most pitiful performance of all came in 1990, when the first George Bush nominated David Souter. As a hospital trustee, he had voted to allow the performance of abortions back in 1973. Pro-life groups should have taken notice, but instead, it was pro-choice groups that lined up against his nomination. A poster commonly seen around DC that summer read “Stop Souter or women will die!” Never before or since have liberals so strongly opposed such a liberal nominee.

The abortion lobby flexed its muscle again in 1991, falling just short in its “high-tech lynching” of Clarence Thomas. But even with this rare pro-life victory, it was too little too late, and eight months later, Blackmun, Stevens, O’Connor, Kennedy, and Souter were the five votes to reaffirm Roe in Planned Parenthood v. Casey. At last, the fruit of pro-choice tenacity and pro-life docility in judicial nominations were on full display for all to see. But somehow, the message still failed to sink in.

When the anti-Roe Byron White was replaced by the pro-Roe Ruth Bader Ginsburg in 1993, only three Republicans voted against her. One year later, Stephen Breyer attracted nine ‘no’ votes, but most were based on his shady financial dealings rather than his support for a Constitutional right to abortion. For the vast majority of “pro-life” Senators in Congress, abortion was still apparently a negotiable issue when it came to confirming Supreme Court Justices.

As this fantastic and well-researched article on Live Action’s blog meticulously demonstrates, even John Roberts and Samuel Alito aren’t definite anti-Roe votes. Thus, even to this day, pro-life Senators remain content to let a nominee slide through, with no quality control whatsoever, as long as they were picked by a Republican president. In less than two years, Roe is turning 40 years old. Any strategy that fails for nearly 40 years, in my estimation, ought to be ditched. It is time, after decades of timidity during Supreme Court nomination, for pro-lifers to go on the offensive, just as liberals did against Bork and Thomas. After all, with Roe still on the books, it’s not like we have anything to lose.

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