Bacevich has the better of the argument, at least as regards abortion. 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.
This is really the heart of the matter. For decades the GOP kept luring pro-life voters to the polls by saying, “We just need the majority in Congress and control of the White House, and then you’ll see things change.” So these people faithfully turned out every time for candidates, some of them quite mediocre and undeserving, and finally gave the GOP the unified government it had said it needed, and in return they received nothing more than they had under Reagan at the beginning. It was also obviously during this time that the GOP was wasting all of its time and energy launching and defending the war in Iraq, while scarcely being able to expend an ounce of political capital on anything important to pro-life conservatives. (Oh, wait, I forgot-Schiavo!) The question of priorities is relevant here.
Dan re-states the issue this way:
Bacevich is not denying any of that, of course, and Douthat simply avoids the tough question implied in Bacevich’s article: what exactly can we expect from overturning Roe, and is whatever hoped-for good is to be achieved enough to justify voting for a candidate—McCain—who will perpetuate one unjust and disastrous war and probably start a few more?
So here Dan is staking out a different position from the one Ross describes: even if it were likely that McCain would appoint another anti-Roe justice and the Court would then overturn Roe very quickly, that still may not justify supporting McCain because of his backing of an unjust war. However, I certainly am doubtful that McCain would appoint such a justice, or that any nominally anti-Roe justice he appointed would hold to that view when it matters. What sort of justice do we really expect McCain to appoint, when it is a question of satisfying social conservatives he probably doesn’t need to appease any longer (especially if he is going to be just a one-term President) or winning the approval of his media admirers and former Senate colleagues? What sort of justice does Ross expect a 55-seat, combative Democratic majority Senate to confirm?
Ross and Dan both talk about Justice Kennedy, but there was another vote to uphold Roe in 1992 that has so far gone unmentioned. The tenure of Sandra Day O’Connor is a cautionary tale for all those who trust rather too much in certain judges (while ironically distrusting the judiciary as an institution at the same time). When nominated, she was presented (misleadingly) as an anti-Roe justice, but proved to be nothing of the kind. That may or may not happen with Roberts and Alito, but it’s worth noting that one of the things that made Roberts a clear favourite for the first Court appointment was his relative lack of a paper trail. Indeed, I guessed that Bush would pick him because of this Souteresque quality.
Part of my skepticism of Bush’s justices and McCain is simply the result of my pessimism, which I think is well-founded especially when it relates to government. I assume that those seeking power in one form or another will exploit the hopes of others in order to get it, and will then do only as much for those others as is necessary to retain power, and in the case of lifetime appointments to the Court the justices don’t have to do anything to retain the unchecked and arbitrary power they now possess. At the same time, I don’t think that John Roberts sat before the Judiciary Committee and perjured himself when he said that he thought that Roe was the “settled law of the land” and then went on to say, “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” To expect that Roberts is a reliable anti-Roe vote is ultimately to believe him to be a liar, in which case it is not clear why anyone would trust him one way or the other.
A stronger, long-term argument is the one Dan made in his original, excellent article:
The blame for the Republican loss of Congress and the damage it inflicted upon the pro-life movement rests not with antiwar paleoconservatives but with Hitchcock’s friends the neocons. (Hitchcock praises The Weekly Standard in his “Catholic Right” essay.) “The pro-life movement was at least temporarily derailed in 2006 by the strong public backlash against the war in Iraq,” he writes. That’s exactly right: the Iraq War, not Joe Sobran’s support for Jim Webb, cost the Republicans Congress and derailed the pro-life movement. And who gave us the Iraq War?
Where are the expanding Democratic majorities in both houses of Congress coming from? They are coming from, in large part, a backlash against the war. That is not the only reason, and the GOP cannot assume that ending the war would be a panacea for its unpopularity, but it is the largest millstone around their collective neck. So long as the GOP is so deeply unpopular and associated with the Iraq war and the entire foreign policy paradigm that led to that war, it will not even be in a position to confirm the sorts of justices Ross wants, much less “returning control over abortion law to the hands of the voting public,” which I agree with Ross “remains a necessary goal for any pro-life, socially-conservative politics that takes itself seriously as a change agent in American life.”
If we are going to take the long view, the best hope for putting together an electoral majority that will advance the pro-life cause would be either to decouple the pro-life cause from a party committed to perpetuating illegal, foreign wars or to decouple that party from its support for such wars. So long as they are joined together, not only will pro-life priorities take a very remote backseat to interventionist concerns (as social conservatives have always taken a backseat to the national security crowd) but pro-lifers will remain closely associated with and connected to profoundly unpopular policies. That doesn’t even touch the question of the philosophical incoherence of the people who preach the dignity of every human life while endorsing, tacitly or not, secret prisons, torture and aggressive war. McCain’s success would solidify this alliance between pro-lifers and interventionists, which might very easily break apart in the event of GOP defeat in the presidential race. That is, if you like, the long-term pro-life argument for voting against McCain.
Update: As always, Ross responds thoughtfully. I regret if I gave the wrong impression about the occasion of Roberts’ quoted statements on Roe, which Reihan also noted were at his confirmation hearing for a seat on a federal appeals court. Because it was an appeals court position, Ross argues:
A federal judge can’t overturn a precedent without more or less guaranteeing that he’ll be reversed on appeal, so there’s no reason not to promise to faithfully apply it; a Supreme Court Justice, by contrast, can change long-settled law if he deems it necessary.
Certainly, there would have been no reason to have expected Roberts as an appeals court judge to overturn Roe, since Ross is quite correct that such a decision would almost certainly be reversed later (by a Supreme Court full of Republican appointees), but I can think of at least one reason why someone being confirmed to a position on a federal court would say that he might overturn the precedent or modify it. First, he might believe that Roe is bad constitutional law, and would say so when asked. I do understand that confirmation hearings are very political, and it would have been unwise of Roberts in the context of the political atmosphere of 2005 during his Supreme Court confirmation hearings to have bluntly declared, “I’ll overturn Roe the first chance I get!” The Republican majority in the Senate was not all that great, so avoiding confrontation made sense. That was the era of the Democratic threat of filibustering judicial nominations, so discretion on the part of nominees is understandable. However, if you say that it is a “settled as a precedent of the court,” that seems to be very much like saying it is the “settled law of the land.” Settled implies that it is not open to being revisited or revised. Now perhaps there is some important distinction between these two phrases that I am missing, but they sound awfully similar. It’s true that the statement is anodyne, but that doesn’t mean that it lacks significance. It is true that Roberts did not reiterate the statement about his “personal views,” which then makes you wonder why he felt compelled to say it the first time.
Also, I can understand that many nominees don’t want to speculate about how they might rule on a certain kind of case, not least because the particulars of each case are important factors in how judges make their rulings. But then that is why you really shouldn’t expect a Republican nominee to any federal court to give such a blanket endorsement of the authority of Roe as Roberts has given in the past. Indeed, we are supposed to take Roberts’ less absolute affirmation of Roe‘s authority in his Supreme Court confirmation testimony as a good sign, while reading the tea leaves of what we reasonably assume are his personal convictions. Those would be the same convictions that just a few years ago would not prevent him “from fully and faithfully applying that precedent,” but now we trust that they are going to have a significant influence on how he rules in the future.
Incidentally, this parsing of judicial nominees’ phrases, as if they were oracular utterances that carry predictions of fortune and doom, should remind everyone how completely crazy our system has become. It is the concentration of power in the Court and the presumption that it has some authority over state law that are the root problems, both of which predate Roe and go far beyond the debate over abortion, but that is definitely a discussion for another time.
Second Update: By way of comparison, how Scalia answered (or avoided answering) similar questions is instructive.