Bench Memos

Law & the Courts

Misreading the Lessons of History

Those who ignore history may be condemned to repeat it. And those who draw the wrong lessons from history may well find new ways of messing up.

Those of us who are pro-life and are working to see Roe v. Wade finally overturned (here’s my Senate testimony urging exactly that) have plenty of reason to feel burned by several Supreme Court appointments made by Republican presidents in recent decades—namely, Nixon’s selection of Harry Blackmun and Lewis Powell, Reagan’s picks of Sandra Day O’Connor and Anthony Kennedy, and George H.W. Bush’s choice of David Souter. So it’s tempting to think, as one pro-life email I received this morning (no, not from Andy Schlafly) argues, that pro-lifers must insist on a nominee who has “explicitly support[ed] overturning Roe v. Wade and upholding the Constitutional protection of the right to life.”

Let me explain why this test is dubious:

1. For starters, it’s a test that Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito would never have passed. None of them, so far as I’m aware, had ever “explicitly support[ed] overturning Roe v. Wade” at the time of his nomination. Indeed, I believe that, of the four, only Scalia had even publicly criticized Roe.

Further, insofar as the email’s insistence on a nominee who has “explicitly support[ed] … upholding the Constitutional protection of the right to life” means someone who takes the position that the Constitution forbids permissive abortion laws (rather than just leaving the matter to the democratic processes), that is a position that Scalia emphatically rejected and that no Supreme Court justice (much less nominee) has ever embraced.

2. The proper lesson to draw from the mix of failures and successes is that judicial philosophy and character are what really count.

Judge Bork favored abortion rights as a matter of policy at the time of his nomination. But he recognized that Roe v. Wade was a constitutional abomination, and, as he later made clear, he would have voted to overrule it. Justice Kennedy, who is often said to be “personally pro-life” (whatever that means), embraces a theory of justices as platonic moral guardians, so nothing in his judicial philosophy constrains him.

The public records of George H.W. Bush’s two nominees on Roe specifically and on abortion generally were the same: nothing. But David Souter was a disciple of William Brennan, whereas Clarence Thomas was an originalist. Virtually no one involved in the selection process knew Souter. (The biggest exception was liberal New Hampshire senator Warren Rudman, who got just what he wanted.) By contrast, Thomas’s character and courage were well known to many.

3. Over the past three decades, Justice Scalia’s originalism had a remarkable influence on generations of law students and lawyers. Over that same period, the Federalist Society institutionalized that influence and developed a network of outstanding judicial candidates and of lawyers who know those candidates well.

People involved in the judicial-selection process have a broad set of committed originalists to choose from—something far different from what President Reagan faced. And they also know which colleagues, friends, and former clerks to consult to take the measure of the character of the candidate.

Is the process infallible? Of course not. But it’s become vastly better and more reliable than some pro-life activists realize.

4. Many judicial candidates don’t have explicit records on Roe, and that’s at least in part because one lesson they learned from the Bork defeat is that the path to judicial confirmation may require not advertising their positions on this and other issues. Some pro-life activists might decry this, but until they’ve built a Senate that will vote to confirm a Supreme Court nominee who has “explicitly support[ed] overturning Roe v. Wade,” they need to recognize political reality.

Some pro-life activists might also fear that anyone who hasn’t spoken out against Roe before his nomination might be too timid to vote to overturn it. That’s not an entirely baseless concern, but it is an exaggerated one, as the example of Justice Thomas illustrates. In particular, it’s simply wrong to assume that timidity—rather than an admirable ambition to do good—is the best explanation for not having a public record on Roe.

As someone who has spoken out on abortion with the full knowledge that doing so probably foreclosed any path I might have had to a judgeship, I completely respect those who have made a different call and who have discerned that they have a professional vocation in the judiciary.

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