I did not watch the debate yesterday evening among the Republican presidential candidates. I have reviewed the transcript of the debate and offer these observations on the very small portion of the debate relating to Supreme Court appointments and the problem of judicial activism.
Moderator Chris Matthews asked the candidates, “Would the day that Roe v. Wade is repealed be a good day for Americans?” Most of the candidates gave remarkably brief answers:
Mitt Romney: “Absolutely.”
Sam Brownback: “Be a glorious day of human liberty and freedom.”
Jim Gilmore: “Yes, it was wrongly decided.”
Mike Huckabee: “Most certainly.”
Duncan Hunter: “Yes.”
Tommy Thompson: “Yes.”
John McCain: “Repeal.” [Perhaps there is an error in the transcript, or perhaps it was clear in context that McCain was giving an answer that meant “yes”.]
Tom Tancredo: “After 40 million dead because we have aborted them in this country, I say that that would be the greatest day in this country’s history when that is in fact overturned.”
I can’t say that I’m overwhelmed by any of these answers. Although it’s often admirable to be concise, additional explanation is necessary here. And the brief additional explanation some of the candidates provided was more muddling than clarifying. Brownback’s and Tancredo’s answers arguably feed the unhelpful misunderstanding that overturning Roe is tantamount to making abortion illegal. And Gilmore’s answer understates the problems with Roe.
I think that an answer along the following lines would have been much stronger, both substantively and politically: “Absolutely. Roe deprived American citizens of the ability to work together to develop sound abortion laws and policies in their states. Roe imposed on the American people a radical regime of essentially unrestricted abortion through all nine months of pregnancy, and it has distorted American politics for more than three decades. The Constitution leaves abortion policy to American citizens to work out through the democratic processes. And the day that the Supreme Court acknowledges that fact will be a day that all Americans should welcome.”
The worst answer, though, was given by Rudy Giuliani:
Matthews: “Would the day that Roe v. Wade is repealed be a good day for Americans?”
[Intervening answers of other candidates]
Giuliani: “It would be okay.”
Matthews: “Okay to repeal?”
Giuliani: “It would be okay to repeal. Or it would be okay also if a strict constructionist judge viewed it as precedent, and I think a judge has to make that decision.”
Matthews: “Would it be okay if they didn’t repeal it?”
Giuliani: “I think that — I think the court has to make that decision, and then the country can deal with it. We’re a federalist system of government, and states could make their own decisions.”
Giuliani deserves credit for making clear that overturning Roe would leave abortion policy to the states. But even if one sets aside his continued misuse of the term “strict constructionist” and his adoption of Matthews’ sloppy usage of “repeal”, Giuliani’s position that any person worthy of being appointed by him to the Supreme Court could, when given the opportunity, responsibly leave Roe in place is deeply unsatisfactory (for reasons that I spelled out in my 2005 Senate testimony).
The discussion of Roe v. Wade then morphed into discussion of abortion policy generally. Limiting myself to matters relating to the judiciary, I will highlight one comment Romney made in explaining his conversion to pro-life public policies—his realization of the “brave new world mentality that Roe v. Wade has given us.”
One other passage in the transcript bears on Supreme Court appointments. In response to Matthews’s strange question whether it would be “good for America” to have Bill Clinton “back in the White House,” only John McCain linked his answer to the matter of Supreme Court appointments, and he gave a fine response:
No, because it obviously would mean that Senator Clinton is the president of the United States, and we don’t want that. Most importantly, it would mean that the appointment of Supreme Court justices and other judges would be — take a very sharp turn to the left. One of our greatest problems in America today is justices that legislate from the bench, activist judges. I’m proud that we have Justice Alito and Roberts on the United States Supreme Court.