Balkinization

Roe's Survival and Bush I's Souter pick

Priscilla J. Smith

Jack, the one thing you are missing I think, is the relative importance of abortion to the different Presidents, personally and for votes and the importance of Roe to a majority of the American people. This is implicit in David's posts.

I do believe that Reagan and Bush II, the two Republican Presidents who were/are evangelical about overturning Roe tried/are trying hard to do so. Scalia, Kennedy and O’Connor were meant to do this, Roberts and Alito are as well. History (i.e., Blackmun's notes lovingly reviewed by Linda Greenhouse) tells us that the Court would have done it if Kennedy hadn’t flipped during Casey. Bush I, on the other hand, simply wasn’t evangelical about the issue. Under pressure from Babs he had supported Roe in the past like other good waspy Republicans from New England, and flipped during the elections only to keep the Reagan base.

It’s true we were lucky (dumb or otherwise) with Souter, though his vote wouldn’t have mattered if Kennedy and O’Connor had voted to overturn Roe as intended. But history also reveals (in the form of statements by Warren Rudman and i'm sure other things) that Bush I didn’t care enough about abortion to insure the abortion paper trail was there with Souter. He wanted a confirmable conservative, someone who would avoid confirmation battles, and Warren Rudman (R. Sen. N.H.) sold Souter as both.

Bush I also thought he was a popular enough President, the moderates strong enough, that he didn’t have to choose a diehard anti. Remember Souter was nominated on July 25, 1990 on the eve of the Gulf War, which started in August. A year later, as 1992 and elections approached, Thomas was payback to the base.

So it’s clear there is some (dumb) luck or perhaps we could call it -- to romanticize -- judicial integrity, and perhaps true conservatism winning out over evangelical faith (Kennedy, O’Connor and in the old days Souter). Remember when conservatives still followed stare decisis and some judges were open-minded and willing to learn. Some still are, see, e.g., my favorite judge, Judge Kopf, Republican Bush I appointee for U.S. Attorney, now Chief Judge of the Distrist of Nebraska, whose chances of 8th circuit nomination we abortion lawyers undoubtedly ruined.

Couple this with a lack of resolve (or disinterest) by Bush I, and the power, though waning, of more moderate Republicans like Warren Rudman (Souter); and here we are. It has taken this long because the voters are split and that was reflected in Presidents. Now the religious right overreached and Bush II overreached with them. Bush II is so unpopular partly because of his stance on social issues, including abortion and we can only hope that the moderates translate that to McCain or we are done for.

Posted 5:55 PM by Priscilla J. Smith [link]

Comments:

There's a lot to this. One other observation I would make is that it is easy to think that because abortion is a clear litmus test for both parties now that it always was so. In fact, the litmus test nature of Roe grew over time. It wasn't at all one when Ford appointed Stevens. It wasn't much of one when Reagan appointed O'Connor.

It might have been becoming one when Reagan nominated Scalia and elevated Rehnquist, but when Reagan then nominated Bork, the Democrats had control of the Senate again and pushed back, and Reagan then nominated (and withdrew) libertarian Ginsburg and more moderate conservative Kennedy.

By the time you get to Souter, it is perhaps nominally a litmus test, but Souter's supporters, among other things, spent a lot of time reassuring conservatives that Souter was one of them. They weren't more specific. Thomas, of course, was a flaming pro-lifer, and this time, the reassurances went the other way, with the nominee and his supporters reassuring liberals that he had an open mind on Roe.

By the time you get to Clinton, the litmus test was fully in place. Ginsburg had criticized Roe, but few seriously believed that she might overturn it. Breyer was seen as a pretty sure vote to uphold it too.

And, of course, Roberts was a clear pro-lifer. The current President tried to nominate a cypher, Harriet Miers, but this time, the conservative and pro-life movements pushed back, and Alito, another clear pro-lifer, was nominated.

So I would suspect at this point all Democratic nominees will be pro-Roe and all Republican nominees will be anti-Roe. But for years, the litmus test was weak or nonexistent. Now it is strong.

# posted by

Dilan : 8:14 PM

Bush II is so unpopular partly because of his stance on social issues, including abortion and we can only hope that the moderates translate that to McCain or we are done for.

Or we are done for? What do you suppose would happen to us if McCain got elected? The polar ice caps would melt and we'd all be washed out to sea? Seems a little apocalyptic, doesn't it?

# posted by

tray : 1:03 AM

"Bush II is so unpopular partly because of his stance on social issues, including abortion and we can only hope that the moderates translate that to McCain or we are done for"

This seems extraordinarily unlikely.

1. Public opinion is split on abortion; All things being equal, holding one view or the other doesn't translate into being massively unpopular, unless you assume Singerite levels of extremism.

2. Views on abortion are (imperfectly) correlated with political affiliation: A Republican being pro-life doesn't, generally speaking, alienate people who weren't going to be alienated anyway, the same for a Democrat being pro-choice.

I'd say Bush is as unpopular as he is for a number of reasons:

1. He's relatively inarticulate, meaning that even if his otherwise unpopular policies could be defended, HE can't defend them. And generally, he doesn't even try.

2. On a number of issues, such as illegal immigration, he's more in agreement with Democrats than Republicans. This doesn't endear him to Democrats, (Politics doesn't work that way.) but it does piss off Republicans.

3. He's been President while the fortunes of his own party have been reversed. Not entirely his fault, but again, it does piss off Republicans.

In short, Bush's unpopularity is not due to taking a position on social issues the public is split over. It's due to his giving Democrats reason to hate him, Republicans no real reason to love him, and his making few efforts, (And those incompetent.) to win over public opinion.

# posted by

Brett : 8:43 AM

Brett -- of course you list the other reasons he is unpopular, but his conservatism on social issues has pushed many fiscal conservatives/social liberals who voted for him the first time over the edge. They can't do it again. cilla

# posted by

Priscilla J. Smith : 10:06 AM