The First New Justice in 11 Years

I was at the printer, about 20 minutes away from seeing the first copy of the July NRL News roll off the presses, when my assistant called to tell me that Associate Supreme Court Justice Sandra Day O’Connor had announced her retirement. While my printer was none too happy, I, like you, was delighted to hold publication off for a few days so as to get a better feel for the lay of the land. O’Connor’s departure is great news.

There are two predominate theories on the upcoming confirmation hearings for whomever is O’Connor’s successor: Armageddon or relative calm. Most subscribe to the former. Pro-abortion Democrats will oppose any nominee who doesn’t pledge allegiance to Roe v. Wade, now and forever—no ifs, ands, or buts about it.

It’s difficult to image a depth to which they will not sink. Robert Novak’s column from mid-May reported that NARAL had hired a political consulting firm which petitioned the U.S. Judicial Conference in Washington for “financial information on 30 appellate judges in all but one of the country’s judicial circuits, including nine widely mentioned Supreme Court possibilities.” In one of the great understatements of recent times, Novak observed, “[C]ompiling financial profiles of judicial nominees plows new ground.”

It is impossible to avoid the conclusion that pro-abortionists are desperately trying to dig up dirt on prospective nominees. Unable to defeat these nominees on the basis of their qualifications, the NARALs of this world are preparing the kind of gutter attack they unleashed 18 years ago against Judge Robert Bork.

When O’Connor was nominated 24 years ago, I was a grassroots reader of National Right to Life News. I carefully pondered the words of NRLC’s President and Vice President, who testified against her nomination. There were inklings and signs everywhere that O’Connor supported abortion. But the prospect of appointing the first female Supreme Court justice steamrolled this and all other opposition. O’Connor was confirmed 99-0.

Ironically, O’Connor made a comment in her first abortion case two years later that gave us pause. Did she really understand that Roe has no grounding in the Constitution and that technology was making Roe’s abortion-on-demand, trimester-based holdings increasingly incoherent?

That’s clearly a conclusion one could draw from her comments in the 1983 Akron case. Writing last April in the New York Times about Justice Harry Blackmun, reporter Linda Greenhouse put her remarks in context.

“Sandra Day O’Connor surprised Blackmun in the Mississippi [sex discrimination] case, but there was a bigger challenge to come: her vote the next year in her first abortion case, Akron v. Akron Center for Reproductive Health. O’Connor dissented from a 6–3 majority decision that struck down a package of regulations that Akron, Ohio, had adopted to discourage abortions. The majority held that the regulations, including a 24-hour waiting period, were inconsistent with Roe v. Wade. O’Connor’s dissenting opinion not only disputed that conclusion, but also took issue with Roe v. Wade itself. Predicting that the date of fetal viability would move ever closer toward the beginning of a pregnancy, she proclaimed Roe’s analytic framework to be ‘clearly on a collision course with itself.’ Abortion restrictions should be upheld, O’Connor wrote, as long as they did not present an ‘undue burden’ ... .”

O’Connor’s 1983 dissent in Akron was carefully reasoned and thoughtfully written.

After explaining how Roe’s framework was inherently unstable, O’Connor wrote that the Supreme Court “adheres to the Roe framework” because the doctrine of stare decisis (quoting a previous decision) “demands respect in a society governed by the rule of law.” But O’Connor (quoting another prior case) also pointed out “this Court’s considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases.” In a word, stare decisis—the idea that the Court does not cavalierly turn away from previous case law—was important, but not always definitive.

Over the next few years our hopes were dashed, decision by decision. By the 2000 Carhart decision, O’Connor had fallen so far she constituted the swing vote in a decision that overturned Nebraska’s ban on partial-birth abortions.

But Carhart was no surprise. O’Connor had long since backed off from the logic of her own position. As far back as the 1992 Planned Parenthood v. Casey decision, she had helped develop a new framework/rationalization to uphold Roe, which included a mechanical application of stare decisis.

Michael Uhlmann explained what took place in an article in First Things magazine.

“Casey cashiered Harry Blackmun’s right-to-privacy rationale, which had hovered in the constitutional air for nearly two decades without a satisfactory textual landing spot. Henceforth, the right to abort was to be understood as a liberty interest under the Due Process Clause, which included (so the plurality opinion of the Supreme Court said) ‘the right to define one’s own concept of existence and to make the most basic decisions about bodily integrity.’”

The plurality opinion Uhlmann alluded to was authored by Justices O’Connor, Kennedy, and Souter. Their opinion in Casey included what came to be known as the “mystery of life passage.”

It read, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

But what does THAT mean?

Whatever an individual justice decides it means. It’s a vessel into which he or she can pour any meaning. In the case of abortion, it allowed O’Connor to satisfy herself that Roe’s rickety legal scaffolding had been repaired.

Shortly after O’Connor’s retirement announcement, President Bush pledged to send a nomination to the Senate (the first to the High Court in 11 years) so that a replacement will be in place by the start of the October term. The initial reports are that President Bush will not name a nominee until he comes back from his scheduled trip to Europe on July 8.

The President told reporters his administration would consult with lawmakers but also added, “The nation deserves a dignified” confirmation. That, of course, is entirely up the pro-abortion Democrats. As I listened to various press conferences that day, it was clear that they want a public expression of undying fealty to Roe, even as they paradoxically insisted they have no “litmus test.”

The names that have been floated for the Court include men and women of formidable legal intellect, the kind of judges any President would be proud to nominate. As Mr. Bush has said a hundred times, his eminently reasonable requirement is that the men and women he selects will interpret the Constitution, not read their own policy preferences into it.

The pro-abortion crowd is already gearing up to oppose any Bush nominee—no matter how qualified, no matter how well-respected. Stay tuned to National Right to Life for the latest news.

Be sure to visit NRLC’s web page daily at www.nrlc.org. And be sure to pass this edition of NRL News along to all your pro-life family, friends, and colleagues.

It promises to be a long, hot summer.