Pro-lifers should give thanks today to the people who got us here, including Trump and McConnell.
Pro-lifers should give thanks today to the people who got us here, including Trump and McConnell.
G ratitude is one of the greatest of all the virtues, and one of the most conservative. Gratitude for the good is constructive. To be grateful is humbling; it is harder than the posture of superiority that comes from criticism. When extending gratitude toward people and institutions we have criticized or crossed in the past, gratitude is also a close cousin of that great Christian virtue, forgiveness.
In that spirit, with the overruling of Roe v. Wade in today’s decision in Dobbs v. Jackson Women’s Health Organization, we should be full this day of gratitude for a great many people and groups who brought us to this pass, not all of whom lived to see the day. Others can recount the full roster, which includes activists, jurists, scholars, religious leaders, and politicians. But looking on the three critical votes on the Court today that sent Roe to the dustbin of history with Plessy v. Ferguson and struck a crucial blow for restoring the rule of written law in America, we should take a particular moment to thank two Americans still very much in the political arena, whose decisions made this day possible:
Thank you, Donald Trump.
Thank you, Mitch McConnell.
Thanking either of these men is out of fashion, and there seem to be few people left who can thank both of them at once without gagging. Those of us who have been longtime critics of Trump had, I submit, good reasons both before and after January 2021 for those criticisms. McConnell has his own critics, for their own reasons.
We can and will debate what others would have done in their place, and whether, for those who supported Trump, today was worth the rest. But none of that can change these basic facts: Without what McConnell did, today does not happen. Without what Trump did, today does not happen. And so, no matter what we have said or done about either man in the past, or where we stand on them in the future, we should say: Thank you.
Consider Trump. One of the major reasons why conservatives get nervous about who leads the party is the importance of getting the judiciary right, and in particular getting it right on Roe. Dwight Eisenhower gave us Chief Justice Earl Warren and Justice William Brennan, as well as the moderate Justice Potter Stewart, who was among the majority in Roe. Richard Nixon gave us Justice Harry Blackmun, the liberal author of Roe, as well as Chief Justice Warren Burger and Justice Lewis Powell, who joined the opinion. Gerald Ford gave us Justice John Paul Stevens. Even Ronald Reagan went one for three on Roe among his nominees who were actually confirmed, picking Justices Sandra Day O’Connor and Anthony Kennedy. George H. W. Bush went one for two, picking Justice David Souter. George W. Bush did better, but also went at best one and a half for two (depending on how one scores Chief Justice John Roberts’s timid half-a-loaf concurrence, which voted to uphold the Mississippi law, further erode Roe and Casey, but not reach the overruling of Roe in its entirety).
Trump went three for three.
As his 2016 presidential campaign turned from the divisive primary to a general election in which he needed to unify the party behind him, Trump did something unprecedented in American history: He published a list of names of the kinds of judges that he would seek to put on the Supreme Court. As it turned out, none of his three Supreme Court selections were on the original list of eleven candidates, and only Neil Gorsuch was added to the list before the election. Still, the list was enormously reassuring to the many pro-lifers who cast votes for Trump. Exit polls showed that voters who listed the Supreme Court as their top issue were, by themselves, responsible for Trump’s margin of victory.
Was Trump a truly sincere pro-lifer? In retrospect, it scarcely mattered. Trump governed as if he was. He never lost sight of the fact that he owed his office to pro-lifers. He stuck by Brett Kavanaugh when Kavanaugh was slandered by rape allegations. He moved forward to nominate Amy Coney Barrett in the heat of the 2020 campaign. Whether or not others would have done the same in his shoes, Trump got the job done.
For the memory of Trump’s presidency, this could matter quite a lot — especially if there is no second act. Presidencies do not end when the president leaves office. Subsequent events often force us to re-evaluate which of our leaders made wise, far-seeing choices, and which stored up trouble for their successors.
John Adams can be evaluated only once we consider the judicial legacy of John Marshall. Andrew Jackson can be assessed only when including the judicial legacy of Roger Taney. James K. Polk’s acquisition of vast lands from Mexico made much of modern America, but also gave the country new territories that reignited the death struggle over slavery. Ulysses S. Grant’s efforts to fight for black civil rights are now seen as more important than his administration’s corruption scandals. Harry Truman’s policies on the atom bomb, the Cold War, Korea, Israel, and desegregation of the Army loom larger than his dismal economic policy and the cronyist hacks he put on the Supreme Court. It took decades for Lyndon Johnson to settle into the history books; George W. Bush isn’t there yet.
Much was written and said during Trump’s presidency about his accomplishments and failings, his decisions, his fitness for office, and the six-week temper tantrum that set the stage for the January 6 Capitol riot. Time, and whether Trump runs again for the presidency, will tell which of those things really matter in the long run, and how much. Not until each of the two parties has endured a close election loss will we truly know whether Trump’s conduct after the 2020 election was a blip or a real wound to American democracy.
But today, we can lay down one very large marker in Trump’s favor for posterity: His three appointees to the Supreme Court brought a close to a long, dark chapter of human destruction. For that, today, we can offer him our unqualified thanks.
Then there is McConnell. It takes more than presidential will to confirm Supreme Court justices; there must be vacancies, there must be sympathetic senators willing to confirm, and there must be the will to turn those into votes. McConnell has helped deliver all three.
The Republican Senate, in 2016, prevented Barack Obama from putting Merrick Garland — an abortion enthusiast — on the Court, making possible the appointment of Gorsuch and the overturning of Roe. That doesn’t happen if there is no Republican majority built in the 2010 and 2014 midterms. It doesn’t happen unless McConnell, as leader, decides to stop Garland and gets his caucus and the then-chairman of the Senate Judiciary Committee, Chuck Grassley, to go along. As I have demonstrated, McConnell had Senate precedent on his side, but it was still a dramatic step that took a serious political risk and great strength of will. McConnell’s caucus returned another majority in 2016.
McConnell wasn’t finished maneuvering. In 2013, he warned Harry Reid that Democrats breaking the filibuster for appellate judges would invite retaliation. In 2017, McConnell backed that up, ending the filibuster of Supreme Court nominees in order to confirm Gorsuch. When the Kavanaugh allegations erupted the following year, McConnell (following precedent by holding a vote before the election) again held together his entire caucus, and Republicans again retained their majority for two more critical years, defeating three Democratic incumbents as red-state Republican voters rallied around Kavanaugh even in a Democratic wave year.
In 2020, there were again questions of Senate precedent and Senate will when Ruth Bader Ginsburg died in the fall of the election year. Some conservatives called on McConnell to wait, but he had precedent on his side again and the will to wield it. The justice casting the final vote in today’s majority was confirmed.
The Republican Senate, under McConnell’s leadership, made a crucial difference. All nine of the justices who decided Roe were confirmed by a Democratic Senate. Seven of the nine justices who decided Planned Parenthood v. Casey in 1992 were originally confirmed to the Court by a Democratic Senate (William Rehnquist was elevated to chief justice by a Republican Senate in 1986). The current Court, by contrast, contains five justices confirmed by a Republican Senate (Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett). Four of those five were in today’s majority, and the fifth concurred in the judgment. That made all the difference.
So, as we say to Donald Trump, we should say to Mitch McConnell: Thank you. This will be a central part of your legacy.