The Supreme Court, Abortion Jurisprudence, and Pro-Life Politics
Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum.
Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.
President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it. Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.
Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:
“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”
In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials.
Despite this it seems, at least at present, that Kagan may be confirmed without any significant opposition. Senator John Kyl (R-AZ), the Senate’s Republican whip and member of the Senate Judiciary Committee, recently said that a Republican filibuster is effectively off the table. In the event of a filibuster, all 41 Senate Republicans would be needed to prevent Kagan from being confirmed and even a single dissent would enable her confirmation.
This concession by Senate Republicans to allow a vote on Elena Kagan may translate into a major setback for the pro-life cause. From a pro-life perspective Elena Kagan is not at all likely to rule to overturn Roe v. Wade. Before the 2008 elections, there were five pro-Roe justices on the court to four anti-Roe justices with the likeliness of only pro-Roe justices retiring in the immediate future. The ebb and flow of history has already made President Obama into the first president since Ronald Reagan with a great opportunity to shape the Supreme Court for coming generations. President Reagan over a span of eight years nominated three of the current sitting members of the high court.
President Obama’s first nominee Sonia Sotomayor was confirmed last year. Now in the mere second year of his presidency, Obama already has a second opportunity to shape the court and with no Republican opposition, it is all but guaranteed. President Obama may have the opportunity for at least one more pick and if President Obama is not a one-term president his influence over the court will surely be amongst rarities in American presidential history. Not counting George Washington who appointed a total of ten justices, President Franklin D. Roosevelt appointed 8 justices, and post-presidential term limits, President Eisenhower holds the record at 5. President Reagan nominated 3 in 8 years, and Presidents Bush I, Clinton, and Bush II nominated 6 in 20 years with 2 nominations each.
The implications of this are indeed far-reaching. Any future Republican presidents are likely to be replacing conservative justices with conservative justices, playing defense rather than offense. The predisposition of the Court toward tolerating Roe v. Wade might very well last another generations, perhaps even, two. Recent history seems to affirm this hypothesis. The actual length of terms for justices has increased dramatically since 1970, from a prior average of about 15 years to a present average of about 26 years. The increase in life expectancy may have something to do with this, but so does political calculation.
The longer each appointment to the Supreme Court lasts, the more valuable—politically speaking—it becomes, which creates an incentive for presidents to nominate relatively young nominees. Kagan, the current nominee, is 50 years old; Sotomayor was 54, John Roberts was 50, and Clarence Thomas was 43. The conventional wisdom has been that the more political the nomination and appointment process to the Supreme Court becomes, the more likely Presidents will nominate younger and ideologically-chosen candidates, which in turn give the president a legacy in shaping the judicial and political philosophy of the high court as well as provide for the future survival and perhaps victory of the president’s political sentiments.
Personally, I am no constitutional law scholar and have no strong view in favor of any competing theory of constitutional hermeneutics, whether it’s originalism or judicial pragmatism. But if the Republicans do not challenge the nomination of Elena Kagan more seriously their passivity will allow President Obama to cement the court safely with justices that will safeguard the intellectually incoherent Roe v. Wade decision for years and years to come.
Pro-choice Senators sensing a possible threat to Roe in the late 1980s had no problem whatsoever in turning the confirmation process of Robert Bork into a partisan circus with Democrats howling that Reagan would pack the courts with judges against women, minorities, and social justice. The late Senator Edward Kennedy immediately took the Senate floor after Bork’s nomination and announced his opposition:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Bork’s confirmation was ultimately defeated by a 58-42 margin. In his place, Anthony Kennedy—who endorsed the decision of Griswold as well as the “right to privacy” calling it a “zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the government, ‘beyond this line you may not go’”—was later confirmed who with Sandra Day O’Connor, both Reagan nominees, would vote to uphold Roe v. Wade in the 1992 Supreme Court case Casey vs. Planned Parenthood.
Why have the Republicans sat back and virtually conceded to the president? Senator Kennedy and the Democrats did anything but concede and they successfully saw to Roe surviving nearly another 20 years and beyond. But at the point when the opportunity to change the sway of the court on this all-important-issue (at least it’s important at election time) is available, the Republicans shift gears to neutral. This inaction does little but arouse my cynicism as a Democrat that Republicans love my vote as a pro-life Catholic for an issue that is nothing to GOP party operatives but a pragmatic political talking point.