Bench Memos

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I am just as puzzled as is Gary Bauer at the reluctance of pro-lifers to recognize one of their own — in this case, John McCain.  Gary suggests several means by which McCain could relieve these lingering doubts.  I agree with almost all that he says, save that I would raise as a question — and an important, consequential one — what Gary presents in a declarative sentence.  Gary agrees with my former student Matt Bowman that McCain “should pledge to nominate judges who are not only judicially conservative but also socially conservative on abortion.”  I am puzzled about that as well.

Bauer and Bowman would be quite right if the judicial position they have in mind were this: the correct answer to the constitutional question about abortion is that the unborn are entitled to Equal Protection of homicide laws if, in truth, they really are persons.  This happens to be my view, which is one reason I will never be appointed to any court. 

It is easy to see that no one who is not “socially conservative” (in this sense) would have adequate reason to be “judicially conservative.”  But the Bauer/Bowman position is the much more familiar view of Thomas, Scalia, and many other conservatives: the Constitution is silent on abortion.  Reversing Roe means it is up to the states to decide to be pro-life or pro-choice.  And there is an end to it.

The validity of this “federalism” view does not depend logically or in any other important way upon the belief that persons begin at conception.  Many people who describe themselves as politically and morally pro-choice hold it.  I suspect that even the two dissenters in Roe — Justices Rehnquist and White — were then at least moderately pro-choice. And certainly the first great scholarly critique of Roe was written by a self-described liberal on abortion, the late John Hart Ely.  Bauer and Bowman say, however, that things have gotten to the point where a judge needs (in my word) the push of moral conviction to maintain and act upon even the federalism view.  Or, perhaps, they are saying that pro-lifers are not going to be convinced about John McCain unless he says or implies that he — McCain — thinks that judges need that push.  Or perhaps a bit of both.

I just don’t know.  Nor do I know if anyone who is known to be “socially conservative” on abortion would ever — during the next administration — get the chance to be “judicially conservative” too.


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