Fair Hearings and an Up or Down Vote

 "President Clinton's two appointments to the Supreme Court proved that the Senate can conduct a thorough review and vote on a nominee within a reasonable timetable. Justice Ruth Bader Ginsburg was confirmed 42 days after the President submitted her nomination, and Justice Stephen Breyer was confirmed 73 days after his nomination was submitted. In both cases, Democrats and Republicans helped move the process forward promptly and voted to confirm the justices, despite significant philosophical differences."

       President Bush in his July 23 radio address

   As these remarks are being composed, we are mid-swing in what no doubt will be a continuing back and forth assessment of how contentious the fight will be over President Bush's nomination of Judge John Roberts to replace Associate Justice Sandra Day O'Connor.

   There is more than a hint in the air today that it's going to get real ugly, real soon. I claim no prophetic powers, but it was--and is--abundantly clear to me (as I have repeatedly written) that Roberts' name will be dragged through the mud long before the confirmation hearings begin sometime after Labor Day.

   In the insular world of the Abortion Establishment, a Supreme Court that runs interference for abortion on demand, for any reason or no reason, is a birthright. In that light, what is the nation's highest court for if not to do its part to clog discussion, throttle legislative initiatives, and hem in contrary thoughts?

   When Justice O'Connor said she was calling it a day, the NARALs and NOWs of this world felt a very queasy sensation in their stomachs. Along with the National Abortion Federation and the Feminist Majority, they instantly announced their opposition to Roberts.

   When nominated in 1981, O'Connor's prospective status as the first woman ever to sit on the Supreme Court largely immunized her from criticism. NRLC, however, knew her background, and promptly opposed her nomination.

   But O'Connor's reputation began to soar in the usual circles as she began to "grow"--i.e., when she decided that Roe was the bulwark of women's equality. With the prospect of the appointment of a genuine conservative to the High Court, O'Connor's standing grew to almost mythical proportions, beginning about 12 minutes after she announced her retirement.

   All of a sudden, we were lectured by pro-abortion Senate Democrats that the "ideological composition" of the Court was cast in stone. It was not proper for President Bush to appoint anyone who was not an O'Connor clone.

   Of course, this is beyond silly. For one thing, it is the prerogative of any President to nominate the justice of his choice. This is especially true for President Bush, who has told the American people over and over that he would appoint only justices who "will strictly apply the Constitution and law, not legislate from the bench."

   For another thing, replicating O'Connor's "minimalist" judicial philosophy in a successor justice would have had a decided downside. During her 24 years on the bench, she kept the legal community guessing, trying to anticipate where her highly idiosyncratic interpretations would lead her in the next case.

   "Rather than being guided by consistent legal rules, lawyers and judges must try to read her mind before they can be confident about what the law requires," legal commentator and law professor Jeffery Rosen had argued. "This increases Justice O'Connor's authority, but it undermines the stability and predictability that define the rule of law."

   Her critics believed that, directionally, O'Connor seemed to have no compass, only a destination: casting the deciding vote in the really important cases. And it would make little difference to pro-lifers that O'Connor was a former state legislator except that when O'Connor's judicial "pragmatism" was wedded to her politicking the result was to prop up the increasingly wobbly Roe v. Wade.

   In the 1992 Casey decision, O'Connor, along with Justices Kennedy and Souter, pondered Roe's increasingly frayed status and decided Roe needed a whole new set of clothes. In Akron, her first abortion-related case, O'Connor began to stitch together the "undue burden" garment. In Casey she finished what she had begun in 1983.

   The gist of this amorphous standard is that an abortion law is unconstitutional if it works an "undue burden" on a woman's right to abortion. In his withering dissent, Justice Antonin Scalia argued that far from "clarifying what is meant by an undue burden" (what the three justices said they were about), this standard "is inherently manipulatable, and will prove hopelessly unworkable in practice."

   It must be understood that Roberts' critics would have opposed him regardless; he was chosen by a known conservative--George W. Bush. But by all accounts Judge Roberts loves and reveres the law. He is described as scary smart, a very decent human being, one of the premier litigators of his generation (he has argued before the Supreme Court 39 times), and (here it gets interesting) a practicing Catholic.

   The early signs that for some in the Senate there will be a religious test--no practicing Catholics need apply--are deeply discouraging. For the moment there is indecision about how aggressively pro-abortionists should go after Jane Sullivan Roberts, Judge Roberts' wife, who has the audacity to be pro bono legal counsel for Feminists for Life.

   By the time you read this edition of National Right to Life News, we'll know a lot more about just how unsavory the attacks will be on the 50-year-old Roberts, a member of the Court of Appeals for the District of Columbia Circuit since 2003. When the vitriol starts to flow, keep in mind that the Senate Judiciary Committee approved his appointment to the appellate court by a vote of 16 to 3 and the Senate confirmed the choice by unanimous consent.

   There were some who thought he might punt. They thought he might be intimidated by the Washington Post and the New York Times and appoint some nondescript semi-mediocrity who would not ruffle any feathers. Instead Mr. Bush did exactly what he said he would do.

   The selection of Judge Roberts is just the latest example of the quality which best explains how Bush first defeated a wildly popular opponent in the race for governor of Texas and later twice won the presidency under conditions in which he was the underdog. And that quality is that Mr. Bush says what he means and means what he says.  

   Please keep track of events by visiting Today's News & Views at www.nrlc.org. More important right now, please contribute to help fund NRLC's grassroots efforts to ensure that Judge Roberts gets a fair hearing and an up-or-down vote.

   It's may well be a very, very contentious couple of months. If justice is to prevail, we need your help.