Dan McCarthy has penned a long rejoinder to my post on abortion, Obama and the GOP, and I thought I’d respond to a few points. First, this one:
The GOP has had opportunities to overturn Roe before—at any point when Republicans controlled the House, Senate, and White House, Congress could have restricted the Supreme Court’s jurisdiction over abortion using the powers invested in the legislative branch by Article III of the Constitution, overturning Roe at a stroke. Perhaps they were right not to do so: the powers of Article III, Section 2 have rarely been used in such a manner, and the precedent could easily have boomeranged against conservatives once the Democrats took Congress. Nevertheless, if the GOP were as adamantly pro-life as pro-lifers are encouraged to believe it is, the Republican Congress could have voided Roe any time between 2003 and 2007.
I am certainly not encouraging pro-lifers to believe that the GOP is adamantly pro-life; I'm just suggesting that given the political landscape on abortion over the last few decades, Republican Presidents have done better by the pro-life movement than many disgruntled abortion foes would have you believe. And McCarthy's example of what the GOP "could" have done if it were only more serious strikes me as pure fantasy. If this is what he expects an "adamantly pro-life" Republican Party to do for the anti-abortion movement, then of course he's going to be disappointed, in the same way that many left-wingers are no doubt disappointed that the Democratic Congress hasn't yet impeached George W. Bush. Like impeachment, overturning Roe via court-stripping would be a ticket to political suicide - and a pro-life movement that expects the GOP to commit political suicide on its behalf is setting itself for disillusionment.
McCarthy goes on:
Douthat predicts that “to vote for Barack Obama in 2008 is to give up on overturning Roe for at least a decade, probably for two, and possibly for all time.” This is histrionic. As the first comment posted in response to Douthat’s blog pointed out, the four presumably anti-Roe justices on the court are all young enough that one can expect them to be around in a decade’s time. Scalia is the oldest of the four at 72; liberal Justice John Paul Stevens is still on the court at 87. If Republicans can purge themselves of the taint of the Iraq War and clean up the party by 2012 or 2016, an opportunity to create an anti-Roe majority may arise again.
It's true that the four (presumably) anti-Roe justices will probably still be on the Court for the election of 2016. But right now, we're headed into a period when the next few retirees will most likely be pro-Roe votes, whereas a decade from now, we'll be entering a period when the most likely retirees will be first Scalia and then Thomas. This means that pro-lifers enjoy an opportunity now, however limited, that they probably won't have again for years to come. And ceding the Presidency to the Democrats for the next decade will enable a President Obama to restock the bench with young, pro-Roe votes, which in turn will force the next conservative President into appointments that merely sustain the current balance, rather than shifting it to the right. The "opportunity to create an anti-Roe majority may arise again," sure - but it could be a longer time coming that McCarthy's analysis suggests.
Moreover, with each passing year the argument from stare decisis grows stronger, tilting conservative jurists who might otherwise be inclined to overrule Roe and Casey toward upholding those rulings instead. And I don't think pro-lifers should count on being nearly as potent a force in American politics in the 2020s as they are today if there isn't any movement on the issue in the interim. (Especially since social conservatives can expect to find themselves on the defensive on a host of other fronts in the intervening years, as the biotech revolution picks up speed.) It's been hard enough to sustain the anti-abortion movement across thirty-five years and counting of disappointment, and telling pro-lifers that they need to set their sights on the Supreme Court battles of 2023 or so seems like an effective way to encourage a lot of them to give up on overturning Roe entirely.
And yes, I understand that overturning Roe won't end abortion in America, a point that the second half of McCarthy's piece is devoted to hammering home, and I completely agree with his claim that "to reduce the abortion rate in the U.S. dramatically will take a long time and will require much more than the reversal of Roe." But the reversal of Roe is a necessary pre-condition for all the hard and heavy work that he discusses, and to accept that Roe won't be reversed for twenty years or more is to push that hard and heavy work post-Roe work into a future so distant as to be essentially imaginary.
McCarthy also makes the point that the presence of a Democratic Senate, and McCain's own accommodationist instincts, will make it difficult for an anti-Roe justice to be confirmed. (Though not impossible, I would submit, for reasons that I'll happily elaborate in a later post.) But the argument from political reality cuts both ways, since McCarthy's case for why anti-war pro-lifers should vote against the Arizona Senator hinges on the claim that McCain "will perpetuate one unjust and disastrous war and probably start a few more." Given the constraints a McCain Presidency will face both overseas and in the domestic arena, the latter prediction strikes me as wildly implausible. As for the former prediction, I'm more inclined than McCarthy to sympathize with arguments for perpetuating our presence in Iraq, but even if I weren't I think its important to recognize that voting for Obama in the hopes - harbored by Bacevich, among others - that he'll follow through on his promise to "end the U.S. combat role in Iraq" is to grasp at a very thin reed indeed.
It's true that pro-lifers who vote for McCain in the hopes that he'll shift the Court decisively in our direction may end up disappointed. But I think that anti-war conservatives who vote against McCain in the hopes that a President Obama will extricate us from Iraq - or "implicitly call into question the habits and expectations that propelled the United States into that war in the first place," as Bacevich hopefully puts it - are setting themselves up for an even greater disappointment.
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We're headed into a period when the next few retirees will most likely be pro-Roe votes, whereas a decade from now, we'll be entering a period when the most likely retirees will be first Scalia and then Thomas.
First of all, you're stacking the deck by assuming the Democrats would have the White House for a decade. I believe Presidential terms are 4 years long.
Second, we should look at the ages of the Justices in question:
Pro-Roe:
Stevens - 87
Ginsburg - 75
Kennedy - 71
Breyer - 69
Souter - 68
Anti-Roe:
Scalia - 72
Thomas - 59
Alito - 58
Roberts - 54
Clarence Thomas is a long, long way from retirement. Now, is it possible that three Pro-Roe justices retire in an Obama administration and are replaced by like-minded 45-year-olds? Of course. Is it likely? Certainly not. And 2012 isn't all that far away.
Posted by right | April 2, 2008 6:15 PM