Kerry promised during the primaries to appoint to the Supreme Court only justices who favor Roe v. Wade because “people who go to the Supreme Court ought to interpret the Constitution as it is interpreted, and if they have another point of view, then they’re not supporting the Constitution, which is what a judge does.” Yesterday, he said that he would be willing to appoint anti-Roe justices so long as the Court had a pro-Roe majority. (“Supporting the Constitution” was apparently no longer a requirement for his nominees.) The abortion lobby expressed its displeasure, and reasonably so given its principles–if Clinton had followed that policy, the Court might have upheld bans on partial-birth abortion and pro-lifers would need to switch only one more vote to overturn Roe. So now Kerry is saying that he will nominate only pro-Roe justices.
The flop-flip was accompanied by some unconvincing spin. Here’s what Kerry said yesterday: “I will not appoint somebody with a 5-4 court who’s about to undo Roe v. Wade. I’ve said that before. But that doesn’t mean that if that’s not the balance of the court I wouldn’t be prepared ultimately to appoint somebody to some court who has a different point of view. I’ve already voted for people like that. I voted for Judge Scalia.” Nedra Pickler’s AP story has Kerry aides saying that “some court” was a reference to lower federal courts, not the Supreme Court.
Aides said later that “some court” was not a reference to the Supreme Court, only lower federal benches. That is hard to reconcile with his prefatory reference to a 5-4 Supreme Court or with the Scalia example–in other words, with anything he said.
Still unclear is whether he would appoint appeals-court judges who are anti-Roe. But he has been supporting filibusters of Bush judicial nominees for less than that: A major complaint against Priscilla Owen has been that she read a parental-notification law in a way the abortion lobby found disagreeable.