Washington, D.C. is bracing for the firestorm sure to come over the nomination to the Supreme Court. With the departure of Justice O’Connor, the vacancy offers the chance to replace the “swing” vote that would make the most profound difference on issues such as abortion and racial preferences. There has been much talk about the lure to appoint a Hispanic or another woman, but for conservatives this is not the moment to take a chance. Their inclination is to go for the candidates with the surest records, marked off in their opinions, their writings, their speeches. And so conservatives, seeking their deepest assurance, would find it in a decision announcing one of these names: Michael Luttig, Michael McConnell, Edith Jones, John Roberts. But my own hunch is that Luttig, McConnell, and Roberts are likely to come forth when the departure of the chief opens up another slot, either to replace Rehnquist or to take the place of a sitting justice raised to his current office. Of course, I could well be wrong–and in case anyone missed it, I repeat that I may be wrong–but my own hunch is that, for very good reasons, the choice for O’Connor’s spot may center on the two Ediths: Edith Jones in Texas or Edith (Joy) Clement in Louisiana.
Edith Jones has the sharper definition as a conservative, tagged as pro-life in her perspective, and she is bound to draw the heaviest fire. Joy Clement, in contrast, would be a harder target: Her own specialty was in maritime law; she has not dealt, in her opinions, with the hot-button issues of abortion and gay rights; and she has stirred no controversies in her writings or in her speeches off the bench. She would be the most disarming nominee, and it would be a challenge even for Ralph Neas or Moveon.org to paint her as an ogre who could scare the populace. The main unease would come in the family of conservatives: If people don’t know her personally, they will suspect another Souter or Kennedy. For they have seen the hazard in relying on the assurances given even by the most reliable conservatives, who claim they can vouch for the nominee.
I would vouch for Joy Clement myself, and I would vouch for Edith Jones. But as I commend Joy Clement, I open myself to these searching questions from friends who have suffered the lessons of experience: If we know little, really, about her philosophy or jural principles, how do know that she will not alter when she is suddenly showered with acclaim from the law schools at Harvard and Columbia? Will she not be lured as she is praised in measures ever grander, as a jurist of high rank, as she “grows” with each step ever more “moderate” and liberal? Those who commend her face the risk of joining the ranks of those who offered assurance on Kennedy and Souter, and lost forevermore their credibility.
But even more unsettling than that, the willingness to go with the candidate without a crisp, philosophic definition may mark the willingness to act, once again, within the framework defined by the other side: It begins with the reluctance to admit that we have ever discussed the matter of abortion with this candidate, or that she has any settled views on the subject. In other words, it begins with the premise that the right to abortion is firmly anchored as an orthodoxy; that those who would question it are unwilling to admit in public that they bear any such threatening doubts. The willingness to accept premises of that kind, as the framework for confirmation, may account for a Republican party that has brought forth as jurists the team of Stevens, O’Connor, Kennedy, and Souter.
If the administration finally comes forth with the name of Edith Jones, that will be taken as the clear sign of a willingness to break from those debilitating premises that signal, in advance, the eagerness to back away from an argument. But on the other hand, Edith Clement may be the stealth candidate who, for once, delivers to the other side the jolt of an unwelcome surprise. She may be the disarming candidate who truly disarms before she goes on to do the most important work that a conservative jurist at this moment can do
And what is that most important work? For the conservatives, the most consequential shift would come in flipping the decision on Stenberg v. Carhart (2000) and upholding the federal ban on partial-birth abortion. Either one of the Ediths would guarantee that outcome; and in my own reckoning, such a decision on partial-birth abortion would virtually bring to an end the Roe v. Wade regime. For it would send up a signal to legislatures throughout the country that the Court was now open for business in sustaining many varieties of restriction on abortion. They might be measures to require the method of abortion most likely to preserve the life of the child, or measures actually to bar abortions late in pregnancy, or abortions ordered up because of the likely disabilities or afflictions of the child (e.g., Down’s syndrome, spina bifida). Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion. Ordinary people would be drawn in to talk again about the circumstances under which abortions may be justified. And that talk, among ordinary folk, will become more and more common because those they elect, sitting in local legislatures, will be enfranchised again to pass laws and make judgments on these matters.
If that sense of things is right, then it could make a notable difference if the decision that upholds the law on partial-birth abortion–and the decision turning the law on abortion onto a different axis–were written and announced by a woman. That is not to give in to the small-mindedness that is everywhere about us. For there are enough clichés abounding, tagging the right to abortion as “a woman’s right.” The cliché masks the fact that women, in the aggregate, have ever been more reserved about abortion than men, and that the strongest support for abortion has steadily come from middle- and upper-class white men. When the Court begins to explain again the grounds for protecting children in the womb, that account may produce a more lasting resonance if the explanation comes from a woman. At the same time, we could only run the risk of feeding the worst clichés in our politics if the only woman on the Court was Ruth Ginsberg, and if the Voice of the Woman on the Court spoke only in the accents of the Left. The commentators who have been clamoring these days for “balance” on the Court have not exactly been clamoring for a balance between women. And yet it would be no descent into a low politics to show that a woman’s perspective may express itself in an attachment to the moral tradition and to a conservative jurisprudence.
Sandra Day O’Connor was herself the prisoner of one cliché: She wrote persistently of “stereotypes” based on gender, and persistently discounted the possibility that behind the common perception were truths, grounded in nature. At this moment, with the possibility of a gentle but dramatic turn in the law, we should not discount the possibility that certain lessons may be taught with an authority at once firm and disarming when they are taught with the hand and voice of a woman. They may come, in this instance, from one or both of the Ediths in our lives.
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.