Via Ross Douthat, I see that Noah Millman has written some interesting posts about Alberto Gonzales, the Supreme Court, and pro-lifers. In what follows I’m not quoting what’s most interesting in the posts, just that with which I disagree and have something to say.

Millman writes: “I think Bush, to the extent that he promised to appoint Justices who could be confidently expected to vote to overturn Roe, promised too much. It is certainly appropriate for prospective Justices to opine on whether Roe was well-decided, but that’s not actually the same thing as opining on whether or in what terms it should be overturned, as the latter amounts to prejudgement which I think is categorically inappropriate. This may sound like nit-picking (does anyone doubt that Antonin Scalia would vote to overturn Roe?) but I don’t think it is. These sorts of fine distinctions really do matter when you’re talking about the integrity of the law.”

Millman was right to put that “to the extent” in the first sentence of that passage. The position of all the legal types and several of the social conservative liaisons in Bush’s 2000 campaign was precisely the one that Millman outlines: It would be wrong in principle for judges to promise to vote to overturn Roe. They said it would be a violation of some (generally unspecified) canon of “legal ethics.” Some of them added that if a judicial nominee had made such a promise he would then have to recuse himself from abortion cases. So extracting the promise would be doubly self-defeating: It would doom a nominee’s chances of confirmation since the promise would come out, and it would prevent him from voting on the abortion issue. That’s how Bush dodged demands during the primary season to promise pro-life (or anti-Roe) nominees. Gary Bauer, Alan Keyes, and Steve Forbes pounded him for it, but Bush didn’t change his position.

I thought there were excellent political reasons for not pledging to nominate anti-Roe justices. But I didn’t (and don’t) buy the legal-ethics argument (although some very smart people have tried to persuade me of it). This post is getting overlong, so I’ll just say this: Nobody raised these arguments with regard to Clinton’s nominees. His administration had an openly promised pro-Roe litmus test for judges. Nobody suggested that Ginsburg and Breyer have to recuse themselves from abortion cases. How is a pledge to overturn Roe more compromising than a pledge to reaffirm it?

I think Douthat may be a little too pessimistic in one of his comments on this topic. He writes, “[W]hat the GOP has failed to do–and I don’t see any prospects for change on this front–is to change elite opinion, and especially elite journalistic and elite Washingtonian opinion, which holds that even if it was wrongly decided, the Roe license is inviolable.” Republican and conservative elites are elites too, and they are much more pro-life than they were when I first came to Washington in 1992.