The Occasional Observer

As the Supreme Court's term comes nearer to completion and rumors of impending vacancies continue to swirl, the conservative blogosphere is alive with predictions and plans. Over at ConfirmThem, the questions continue to be asked, answered, and re-asked: "Who should the President nominate?", and "What are the proper criteria for selecting a nominee?"

First there are criteria relating to qualifications: academic backgrounds, clerkships, professional accomplishment, status in the judicial community, and judicial philosophy as evidenced in written opinions, articles, testimony and speeches. Then there are the political criteria: gender, race, religion, marital/family status, support among the base, intensity of Democratic opposition, ABA ratings, etc. While there is general agreement that all of these factors come into play, their relative importance is the subject of much debate.

I don't claim to know how the White House will prioritize the criteria, but I think we can draw some conclusions based on the three Supreme Court picks the President has already made. First, identity politics has played less of a role than many pundits predicted, with two white males being confirmed. While there is much speculation that the President will pick a woman or a minority for the next vacancy, the same speculation existed when the President nominated both Roberts and Alito. Second, the President seems to want someone just conservative enough to satisfy the base without risking an all out war in the Senate, and a potentially damaging loss. He obviously miscalculated support from the base with the Miers nomination, but the general idea still holds. Otherwise, we might have seen Edith Jones, Janice Rogers Brown, and William Pryor instead of Roberts, Alito and Miers.

So where does that leave us with the next pick? Of the names most frequently mentioned on the rumored short list--Callahan, Mahoney, Williams, Sykes, Estrada, Cantero, Easterbrook, McConnell--it is almost certain that Callahan and Mahoney would provoke another Miers-like rebellion from the base. Williams, Sykes, and Cantero would not be under consideration if not for identity politics. While I would not be shocked if any of the three were chosen, the President has twice selected more qualified candidates over affirmative action picks. My instinct is that the trend will continue, especially in light of the Miers debacle. An Estrada nomination would be an all-out war, so I doubt he'll get the nod, if the past is at all indicative of the future. That leaves Easterbrook and McConnell as confirmable, heavyweight candidates who have at least some support from the base. My personal concern is that McConnell will get the nod, given he is 7 years younger than Easterbrook, has a good deal of support from conservatives and liberal academics alike (at least he had it during his COA nomination), and would be an extremely difficult nominee to derail.

I use the word "concern" because, as a strong pro-life advocate, I think that McConnell could turn into a disaster on abortion. I know McConnell has his fans among pro-lifers, primarily for his WSJ article denouncing Roe ("Roe v Wade: Still Illegitimate at 25") and for signing a petition calling for a Constitutional Amendment making abortion illegal. But Judge McConnell, in his hearings for the 10th Circuit, repudiated the position that the Supreme Court can overturn Roe:

Chairman Leahy. Is there anything in the Constitution that would prevent, for example, Congress from regulating private decisions about family planning made within the confines of a marriage?

Mr. McConnell. Certainly, there have been a whole series of Supreme Court decisions on those [family planning] rights, which, by the way, I have defended and not criticized... I happen to agree with them.... [A] lot has happened in the 26/27, however many years it's been since Roe v. Wade... At the time when Roe v. Wade came down, it was striking down the statutes of at least 45, if not all 50 of the States of the Union. Today it is much more reflective of the consensus of the American people on the subject. I believe that the doctrinal analysis offered in Planned Parenthood v. Casey has connected the right much more persuasively to traditional legal materials, and then the weight of stare decisis simply indicates that this is an issue that is settled. It is as thoroughly settled as any issue in current constitutional law.

Some view this as mere obfuscation, an attempt to throw Senate Democrats off the trail. "Settled law" is settled, in other words, until our shiny new conservative Supreme Court has the chance to overturn it. So reasoned the PowerLine blog in a pro-McConnell piece:

"virtually nothing in modern constitutional law is truly "settled." To say that Roe is as settled as other issues in constitutional law is not to say much. Any sophisticated reader of Judge McConnell's statement would never mistake it for a pledge of fealty to Roe as precedent."

Apparently the Democrats in the Senate were wise to this possible pro-life chicanery, because they continued to press the issue in McConnell's hearing:

Senator Cantwell. In a statement of pro-life principles, I think it was a 1996 document you signed, and I want to understand if I'm interpreting what you just said correctly, `A constitutional amendment is needed, both reversing the doctrines of Roe and Casey and establishing the right to life protected by the Fifth and Fourteenth Amendments extended to the unborn child.'' Is that what you---

Mr. McConnell. Senator, now that the abortion question is completely settled, the only avenue for any change is through constitutional amendment. This is going to take, what, two-thirds votes of both Houses of Congress, three-quarters of the States. Senator, it is not going to happen.

Roe is not merely settled law, but "completely settled." So the Supreme Court can't overturn it? Nope, afraid not, Judge McConnell replies. Only a constitutional amendment could take away the "right" to an abortion.

This testimony is enough to convince me that Judge McConnell is not the right man for pro-life conservatives. The only question that remains is squaring McConnell's pro-life statements (WSJ article, pro-life petition) with his testimony in the Senate. I would argue that the petition, his WSJ article and his testimony are not contradictory, but rather complementary. His article states that Roe was reasoned incorrectly, his testimony shows he thinks Casey redeems Roe and supports it as legally binding and valid, and the petition shows that he'd like to undo the "right" to abortion democratically because he doesn't think there is anything the courts can do about it. In the article, he states:

"The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously... The Supreme Court brought great discredit on itself by overturning state laws regulating abortion without any persuasive basis in constitutional text or logic. And to make matters worse, it committed these grave legal errors in the service of an extreme vision of abortion rights that the vast majority of Americans rightly consider unjust and immoral."

He does not address the issue of whether the Supreme Court could have "committed these...errors in the service of an extreme vision of abortion rights," i.e., crafted Roe, if they did have a persuasive basis in constitutional text or logic. The type of persuasive basis he alludes to in his Senate testimony: "I believe that the doctrinal analysis offered in Planned Parenthood v. Casey has connected the right [to abortion] much more persuasively to traditional legal materials." Note that he does not mention Casey at any point in his WSJ article, or address whether Casey bolstered Roe's prospects. Saying Roe was a constitutional embarrassment doesn't mean that the Roe/Casey two-headed monster can't continue to stand, as he suggested in his testimony that it will.

As for the petition, here is the most applicable section:

"The right-to-life of the unborn will not be secured until it is secure under the Constitution of the United States. As it did in Brown v. Board of Education (when it rejected the Plessy v. Ferguson doctrine of "separate but equal" as an adequate expression of rights secured under the Fourteenth Amendment), the Supreme Court could reject the "central finding" of Roe v. Wade, that abortion-on-demand is required by an unenumerated "right to privacy" protected in part by the Fourteenth Amendment. The claim that such a correction of error would damage the Court's authority is belied by the experience of Brown v. Board of Education, and by the fact that the Court has corrected its own erroneous interpretations of the Constitution on scores of other occasions.

A more enduring means of constitutional reform is a constitutional amendment both reversing the doctrines of Roe v. Wade and Casey, and establishing that the right to life protected by the Fifth and Fourteenth Amendments extends to the unborn child. Such an amendment would have to be ratified by three-fourths of the states: a requirement that underlines the importance of establishing a track record of progressive legal change on behalf of the unborn child at the state and local level.

The petition is clearly calling for a Constitutional Amendment as the solution to the Roe problem. It mentions the option of the Court overturning Roe as merely a possibility ("the Court `could' reject..."). It is quite possible that Judge McConnell signed this petition with the understanding that it was calling for something other than the overturning of Roe by the Supreme Court. In conjunction with the words of his Senate testimony ("now that the abortion question is completely settled, the only avenue for any change is through constitutional amendment") that conclusion seems hard to avoid.

Judge McConnell is an impressive intellectual, confirmable, and has his admirers among conservatives and academics alike. He is an attractive possibility for the Bush White House. Unfortunately, since I believe the Supreme Court has the duty to overturn Roe v. Wade, I hope the President ultimately chooses someone else.

Hat tip: McConnell resources by Andrew at ConfirmThem