The Supreme Court and Original Sin

COMMENTARY
The Supreme Court and Original Sin
AP Photo/Manuel Balce Ceneta
X
Story Stream
recent articles

Considered at face value, Democrats’ manic characterizations of the Supreme Court nomination of Brett M. Kavanaugh would qualify as mass hysteria.

The nominee, said California freshman Sen. Kamala Harris, “presents an existential threat to the health care of hundreds of millions of Americans.”

“At this moment, we should have no doubt,” tweeted New York Sen. Kirsten Gillibrand. “Women’s rights, civil rights, and equal rights are at stake.”

New Jersey Sen. Cory Booker introduced an inventive new concept of the Senate’s “advice and consent” authority: No appointee of President Trump’s should be considered for confirmation while he’s under investigation.

Harris, Gillibrand, and Booker are considering running against Trump in 2020, so that can be factored in. Ditto for 2016 also-ran Bernie Sanders, who tweeted, “If Brett Kavanaugh is confirmed to the Supreme Court it will have a profoundly negative effect on workers' rights, women's rights and voting rights for decades to come.”

They showed restraint compared to the Yale law students and professors who circulated a letter condemning the university for issuing a press release congratulating Kavanaugh – a Yale grad – for the appointment.

“Judge Kavanaugh’s nomination presents an emergency -- for democratic life, for our safety and freedom, for the future of our country,” the letter reads. “People will die if he is confirmed.”

Giving yourself the vapors is not fatal, but if such panicked language sounded sophomoric, it’s worth remembering that despite their high SAT scores and place in a prominent law school, most of the drafters are still college students.

But what’s Stephen Colbert's excuse? The dependably partisan late-night host went after the nominee because of his name. “I’m skeptical because his name is Brett,” Colbert said in Tuesday’s monologue. “That sounds less like a Supreme Court justice and more like a waiter at a Ruby Tuesday’s.”

This odd criticism wasn’t just a joke that flopped. It was a talking point. “We'll be DAMNED if we're going to let five MEN -- including some frat boy named Brett -- strip us of our hard-won bodily autonomy and reproductive rights,” the pro-abortion rights organization NARAL tweeted Tuesday.

A time traveler from the 1970s would wonder if Judge Kavanaugh was being considered for emperor instead of the ninth justice on the Supreme Court. Moreover, those who know him personally – or who’ve followed his legal career with an open mind – universally consider the guy decent, smart, and thoughtful. He’s a careful person. But the nature of this process changed, gradually at first, beginning on July 1, 1987, when Sen. Edward Kennedy spoke against President Reagan’s nominee Robert Bork in language that was not only intemperate, but personally vituperative:

“Robert Bork’s America,” Kennedy said, “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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens.” 

Bork’s nomination was scuttled, but not without a cost. Alan Simpson, a moderate Republican who served on the Senate Judiciary Committee, said the Democrats’ “scorched earth” tactics set a precedent that would “jade us and gall us for years to come.” Three decades later, this prescient prediction has been realized. Simpson also talked of the logical replacement for a future Bob Bork, a fictional lawyer dubbed Jerome P. Sturdley, “who has written very little that was either thoughtful, challenging, or provocative” – and who’d tell the Senate “nothing” of his true views about the Constitution. 

Here, Simpson was half-right: Republican nominees such as Clarence Thomas and David Souter followed this script, as did Brett Kavanaugh when he was nominated to the appeals court a decade ago. The process wasn’t entirely symmetrical, however. Republican nominees can quietly admit to being “originalists” (trying to divine the Founders’ intent when interpreting the Constitution). They can also express admiration for “textualism” – deferring to the language of laws as written, rather than granting license to evolving interpretations, especially those by bureaucrats. But what they cannot do is question the wisdom of Roe v. Wade, the 1973 Supreme Court decision that codified abortion as a constitutional right for women in this country. 

This 7-2 ruling has become holy writ among Democrats – it was the first item in Ted Kennedy’s screed – and was defended via their judicial appointments by Bill Clinton and Barack Obama. Democrats didn’t hide their strategy. Unlike the charade perpetrated by GOP nominees, Democrats were expected to signal overt support for Roe

If ignoring God’s instructions in the Garden of Eden was mankind’s original sin, Roe v. Wade was the transgression that warped the judicial appointment process in this country – and, some would say, the jurisprudence of the highest court in our land. 

Poorly reasoned and unnecessary, Roe was a power grab by the judicial branch of government over the legislative branch. It also undermined federalism: i.e. the federal government took authority from the states. It was handled by two Dallas lawyers looking to challenge Texas’ restrictions on abortion. The “Jane Roe” plaintiff, Norma McCorvey, came to see herself as a pawn. The case took three years to litigate, by which time she’d given her baby up for adoption. By the 1990s, she’d become a committed Christian opposed to abortion. Baptized a Catholic, she became active in the right-to-life movement. 

In 2005, McCorvey sought a rehearing at the high court, but by then the battle lines were set and the barricades fortified. The results had been profound. At the time Roe was decided, four states (New York, Washington state, Hawaii, and Alaska) allowed abortion on request. In another dozen, including Florida, Virginia, and my home state of California, abortion was largely legal, with some restrictions. The legislative momentum was on the side of the pro-choice movement. 

Roe stopped all that in its tracks. The ruling galvanized evangelical Christian leaders, giving them common purpose with the Catholic bishops. It motivated opponents of abortion to marshal their arguments in compelling ways, alienated millions of traditional Democrats, and helped coalesce a new voting coalition that put Ronald Reagan in the White House. It became a litmus test in both political parties, furthering political polarization. 

Among Democrats, it became a rallying cry for modern feminism. Yet over time, it also put Democrats, who pride themselves as “the party of science,” at odds with breakthroughs in prenatal research pointing to ever-earlier viability outside the womb. 

This is the cauldron Brett Kavanaugh is being tossed into, at a time when the intellectual direction of the high court is up for grabs. Republicans, NARAL tells us, want to use him to “turn back the clock.” That may be true, as Roe certainly doesn’t pass any test of originalism. Still, it’s unclear what a Justice Kavanaugh would do the next time a state passes abortion restrictions, say, with a time limit on when they can be performed.

Will that be the end of the world as we know it? It doesn’t seem so, but then again it didn’t seem like that on Jan. 22, 1973 when seven justices (seven male justices, NARAL) came up with a “right to privacy” that allowed women in this country to terminate their pregnancies. That’s right, a “right to privacy.”

In these utterly transparent times, what a quaint concept on which to hang such an enormous decision.

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.



Comment
Show comments Hide Comments