After Rehnquist

Kate Michelman

September 07, 2005

Kate Michelman is former president of NARAL Pro-Choice America and the author of the forthcoming memoir, With Liberty And Justice For All: A Life Spent Protecting the Right to Choose, to be published by Hudson Street Press/Penguin December 2005.

As the nation mourns Chief Justice William H. Rehnquist, the question of his successor looms—and in the parlor talk of Washington, another question accompanies it: Will Democrats mount any serious opposition to the man nominated to replace him, Judge John Roberts?

That may be a tempting topic of speculation in the Washington rumor mill, but it is also a distraction from the central and substantive issues, the most important of which is this: Senators of both parties have a difficult but straightforward job—to assess Roberts’ judicial philosophy on the basis of the available record, decide whether it comports with their own, and vote according to their consciences.

Throughout his tenure, Rehnquist exerted substantial influence on the rightward move of the court.  The fact that President Bush will now have the opportunity to name at least two justices, and possibly more with time—giving him broad-based power to remake the federal judiciary, even the Constitution itself, for generations—elevates the importance of respectful but rigorous scrutiny of his nominees.

Pundits have an understandable tendency to cast political choices in extremes, but for Democrats evaluating the Roberts nomination, there is a middle ground between all-out battle and collective surrender.  It is called principled opposition. Voting yea or nay costs neither money nor time.  It simply requires senators to fulfill the duties of their offices. 

President Bush has done precisely that.  While I wish his style of leadership was more hospitable to accommodation and compromise, he has not committed an outrage by nominating Roberts.  He has simply evaluated candidates for the job according to their philosophies and chosen one who shares his own.  President Bush, in short, has exercised the prerogatives the Constitution gives him.  Now senators must exercise theirs.

Senators who choose to support Roberts—whether Democrats or, just as important, pro-choice Republicans who have benefited from moderate reputations and crossover votes—will have to explain that position to their constituents.  On the overwhelming balance of Roberts’ extensive record, that will be a tall challenge indeed.

One of the open seats Bush has the opportunity to fill was held by Sandra Day O’Connor, whose vote has been critical to maintaining not just Roe v. Wade itself, but also the case’s practical meaning.  While it is technically true that no one knows whether Roberts—or whomever else Bush appoints in the coming days—would vote to overturn Roe v. Wade, it is completely clear that these nominees would tip the balance on the court in favor of sweeping restrictions on a the right to privacy and woman’s right to choose.  Regardless of these nominees’ position on Roe itself, the decisive question is how rigorously they would interpret its protections.  If Bush’s nominees are slightly more conservative than Sandra Day O’Connor, their votes would be sufficient to make Roe’s protections meaningless in practice even if the case survives on paper.
 
The sole swing vote remaining after O’Connor’s retirement—Justice Anthony Kennedy—has supported Roe itself, but voted routinely with Rehnquist, Scalia and Thomas to uphold severe restrictions on the right to choose, such as the “partial-birth abortion” ban, a misnamed law that actually criminalizes a wide array of abortion procedures.  Moreover, this fall, the court will consider a case that may explicitly lower the standard by which restrictions on abortion are evaluated. 

Bush now has the opportunity to turn that four-justice bloc, which favors severe curbs on abortion, into an outright majority.  In that event, Roe would survive in name only—and wide-ranging restrictions on a woman’s right to choose would be permitted.  Put otherwise, if Roberts and Bush’s other nominee are at least as conservative as Kennedy, or even slightly more conservative than O’Connor—the most optimistic of all reasonable scenarios—Roe would be rendered functionally meaningless for millions of women.

Roberts makes clear the direction Bush has chosen.  Roberts’ open doubt about whether the Constitution includes a right to privacy would have ramifications far beyond the right to choose.  These views will be relevant in cases affecting women’s health, dignity and autonomy as well as myriad others involving such issues as stem cell research and the right of people like Terri Schiavo to dignity and privacy in the twilight of life.

It is true, of course, that Supreme Court justices have shown a capacity to surprise, and disappoint, the presidents who appoint them.  But Roberts is not an unknown quantity on whom President Bush is making an educated guess.  He is a lifelong conservative with an unambiguous record.   It includes hostility not just to the right of privacy, but also to separation of church and state, as well as federal powers in areas like environmental protection.  He has raised doubts about laws guaranteeing equal pay for women and openly questioned whether women should work outside the home.

Roberts, in short, is not a blank slate; to become a moderate on the court, he would have to erase a slate he has spent a lifetime filling with a clear record of conservatism that places him squarely on the far right.

That is not to disparage Roberts. He is, by all accounts, an honest and well-credentialed individual.  That is the very least we should ask for service on the Supreme Court.  His personal decency and brilliant mind do not obviate discussion of the judicial philosophy to which they would be applied. 

If honesty and brilliance were all that mattered, President Bush could have chosen from any number of moderate jurists who possessed those qualities.  He was obviously, and justifiably, concerned with philosophy as well as personal qualities.  Senators should evaluate Roberts—and Bush’s next nominee—according to the same criteria by which the president chose them.
 
Senators of either party who vote for Roberts’ confirmation, or for another justice opposed to the right of privacy, will have to explain why they found his record defensible.  Such senators should not be demonized.  But they should be held accountable, and in that event, the many emerging justifications for supporting Roberts—defenses that may also be offered for supporting a similarly conservative nominee for the other open seat—will likely prove to be thin defenses.

For instance, the conclusion that Roberts’ confirmation seems inevitable is both premature and immaterial.  The likely outcome of the vote does not excuse senators from responsibility to their principles or their constituents.  Senators will have to explain how they voted as individuals, not how they expected others to vote.  Nor can they defend their support of a judicial conservative on the highly questionable hope that he may not be as conservative as he has always, and openly, claimed to be.

The notion of presidential prerogative is equally unpersuasive.  Roberts would not be a staff member executing policy President Bush sets.  He would hold a permanent, powerful and independent office.  President Bush possesses no personal entitlement to shape the Supreme Court for the next generation, only the Constitutional power to propose nominees.  Senators hold the Constitutional right to confirm or reject them.

Likewise, senators are entitled to weigh political considerations such as the views of their constituents.  But one commonly touted political factor—the notion that Democratic or moderate Republicans will have more credibility in opposing a future nominee if they support this one—is false.  They will have less. 

If they support Roberts without argument about his hostility to privacy rights, those arguments will be less available to them in future confirmation battles.  It will be difficult for senators who vote for Roberts today to oppose another nominee whose views are substantially similar in a future battle in which Roe and other fundamental liberties are more immediately at risk.

Most important, such calculations are ultimately irrelevant.  So are political prognostications. Senators are deciding how the court—and, by extension, the Constitution —will effect the rights and freedoms of Americans for decades to come.  The simultaneous opening of two seats is a historic moment that demands serious and substantive scrutiny, not political machinations.

One thing is quite clear: If senators agree with Roberts’ judicial philosophy, they should support him; if they do not, they should oppose him.  How intense a battle they wage is a fair subject for political strategy.  But the outcome of that battle depends on a single and powerful moment—when senators raise their hands and utter the single word “yea” or “nay.”  The decision may be difficult.  Acting on it is not.