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Bush’s Supreme Test

Will High Court Turnover Mean the End of Roe?

BY Carlos Brice?o

Dec. 19, 2004-Jan. 1, 2005 Issue | Posted 12/19/04 at 12:00 PM

 

WASHINGTON — Now that the dust has settled from the battle over the presidency, the next bare-knuckled fight between Democrats and Republicans may be over the replacement of a Supreme Court justice, with abortion likely to be an issue during the nominating process.

The battle is not far off. The health of Chief Justice William Rehnquist, who is undergoing treatment for thyroid cancer, may force him to resign within weeks, legal experts said.

At stake: the possible start of overturning Roe v. Wade — especially because an aging lineup of justices may allow President Bush to replace several others before his term ends in 2008.

“In general, the pro-abortion people are on target in recognizing that Roe v. Wade is very fragile,” said Father Richard John Neuhaus, president of the Institute on Religion and Public Life.

Overturning Roe v. Wade may take some time, however. Sean Rush-ton, executive director of the Committee for Justice, which promotes constitutionalist judicial nominees, pointed out that Rehnquist is known for his conservative opinions. If he is replaced by another conservative, the court retains its status quo in terms of its current balance of opinions.

“Down the road, if there is another retirement … when one of the more moderate or more liberal justices retires, then the president will have the opportunity to change the court in some meaningful way,” Rushton said.

Realizing they have an opportunity to shape the nation's highest court, Republicans have come up with an elaborate plan to counter what they expect will be intense opposition by liberal groups and Democratic allies, such as People for the American Way and NARAL Pro-Choice America, during the nominating process.

“You can nominate Mother Teresa, and she'll be painted as a racist or she's against affirmative action,” said Manuel Miranda, chief architect of the plan. Miranda was a senior aide to Senate Majority Leader Bill Frist, R-Tenn., when he came up with the three-pronged response to any opposition of the president's nominee.

The first occurs immediately, during the day of the nomination; the second occurs during confirmation hearings; and the third takes place when the nomination is debated on the Senate floor, said Miranda, an attorney and consultant.

“The goal is not to depend on a couple of shepherds to protect the nominee, as in the past, but at each level to have all the leadership involved at the first stage, and all the (Senate) Judiciary Committee involved and coordinated at the second stage,” he said. “And have all 55 Republican senators involved in defending the nominee on a constant basis. You don't let any amount of time wait before an allegation or charge is given a response.”

It is the first time Republicans have had a sophisticated plan in place before a Supreme Court justice nominating process, Miranda said. He cited previous extended battles, such as over Justice Clarence Thomas' nomination, as one reason to have a plan in place.

“The American people are more in tune today that their value system is in the hands of unelected elite judges, so Republicans will have an opportunity to bat out all the balls the Democrats throw at them,” he said.

‘Fire Away’

In pro-life circles, there has been much speculation about potential Supreme Court nominees. Hopes are high that the president's choices will be favorable to the movement.

The timing is especially right for the president since his party is the majority in the Senate — 55 Republicans, 45 Democrats — and since the presidential election signaled that Democratic stances on cultural issues, such as same-sex “marriage” and abortion, are not in tune with the majority of Americans, said Robert George, professor of jurisprudence at Princeton University.

“The president has a lot going for him here if he plays his hand correctly,” George said. “I think he should fire away and send his best nominees up there. People he has the most faith in. Don't worry if they have paper trails. If he's going to be concerned about that, then make sure they are people who present themselves very well in the hearings.”

During the campaign, President Bush indicated he would not have a “litmus test” for his nominees; their views on the Constitution seem to be of utmost importance to him.

“What the president has promised to do is to appoint someone who will respect the distinction between interpreting the law and making law,” George said. “If he does, in fact, successfully get someone like that through the process, then that person will strike down Roe — not on pro-life grounds, but on the ground that the Constitution leaves the issue of abortion for determination by the state legislatures.”

It takes a majority to overturn Roe, so the appointment of someone who may be referred to as a constitutionalist may not be enough to do the job. But, even if the court eventually votes against Roe, abortion won't become illegal, George said. The matter would then return to the states, changing the debate into an even more political one, he said.

“I don't think anybody whom the president is going to appoint is going to write an opinion making the case for the personhood of the unborn child,” George said. “They're going to make the case that, as Justice (Antonin) Scalia has argued, the Constitution is silent on the question of abortion. It doesn't prohibit it; it doesn't require states to permit it. And therefore it's a matter to be resolved democratically and not by judicial fiat. That's the best we can hope for.”

What Makes Pro-Life?

If the nominee is faithful to the Constitution, there is only one answer to how he will think on the subject of life, said Douglas Kmiec, professor of constitutional law at Pepperdine University Law School.

“If you are faithful to the text, you will come out with the right answer on this question because our founders didn't write into the Constitution the destruction of life,” he said. “Quite the contrary; they drafted the Constitution for its preservation for ourselves and, as they put it, our posterity. When they make reference to our posterity, who else could they be referring to but succeeding generations of children?”

Patrick Mullaney, a Catholic pro-life lawyer from New Jersey, believes that what may be considered a pro-life “victory” — the court one day deciding to give the states the power to set abortion policy — shouldn't be considered as such because abortion likely will remain legal in some states.

“That means that this entire class of humanity under our system of law has to win elections to be protected,” Mullaney said. “So if you're in a state which would pass affirmative abortion legislation, then you've gained nothing. If you're willing to make the democratic process your king, then you have to live in its kingdom.”

In the 1973 Roe v. Wade ruling, the court decided that unborn babies do not have due-process rights, he said. But Mullaney's view is that the Founding Fathers believed there are certain rights that need to be protected against the will of the majority, and those are individual rights. Under the 14th Amendment, life is declared one of those rights, he said.

In the end, what makes a judge pro-life is recognizing that there is a “moral interface between law and truth,” Mullaney said. He added that the point of law is to deal with that issue and not pass it on to someone else. He defined a pro-life judge as someone who finds life to be “a gift from God whose relationship to the law is to be guaranteed unconditionally, and that unconditional guarantee is found as an enumerated right in the due process clause” (in the 14th Amendment).

“The right to life is already there,” he said. “It simply has to be recognized for what it is.”

Carlos Briceño writes from Seminole, Florida.