February 14, 2008

In his recent address to CPAC, John McCain told the audience that “€œI believe…in …the steadfast defense of our rights to life, liberty and the pursuit of happiness, which I have defended my entire career as God-given to the born and unborn,”€ and asserted that “€œI have proudly defended my 24 year pro-life record.”€ This is also a theme stressed by McCain apologists, including William Bennett and Seth Leibsohn, who led off their hosannas to McCain at National Review Online on Feb. 7 with a recitation of his pro-life credentials. But what can pro-lifers really expect from a President McCain? The answer, I fear, is what they got from the first President Bush”€”unenthusiastic lip service, and little more.

Notably, neither McCain nor Bennett and Leibsohn mention McCain’s enthusiastic support for federal funding of embryonic stem-cell research. It is impossible to square that support with principled belief in the pro-life cause, unless McCain’s operative principle is, “€œI will support legal protection for the unborn, unless it is politically inconvenient.”€ Neither of them mention McCain’s recent statement, reported in the Washington Post on Feb. 3, that “€œIt’s not social issues I care about.”€ Nor do they mention his statement to the San Francisco Chronicle on Aug. 19, 1999, “€œ[C]ertainly in the short term, or even the long term, I would not support the repeal of Roe v. Wade which would then force X number of women in America to [undergo] illegal and dangerous operations.”€ In the same interview, McCain stated he would not have a “€œlitmus test”€ on abortion for judicial nominees.

There are other warning signs as well. McCain’s former Senate colleague, Rick Santorum, an indefatigable champion of the unborn, has stated that, behind the scenes in the Senate, McCain did his best to prevent pro-life legislation from coming to a vote on the floor. Robert Novak has reported that McCain has described Justice Samuel Alito, whom Bush appointed to the Supreme Court after conservative opposition scuttled the Harriet Miers nomination, as “€œtoo conservative.”€ Novak has also reminded his readers that, at the time Vermont Republican Jim Jeffords switched his support to the Democrats in the Senate, McCain was in negotiations with the Senate Democrats to do the same thing.

McCain’s champions point to the Supreme Court, which Republicans seeking to assuage restless conservatives always do.  Of course, there is no guarantee the next President will be able to make any nominations to the Supreme Court.  GOP propagandists regularly warned in 2000 that Al Gore would get to pick three new Supreme Court justices, but in fact George W. Bush had zero Supreme Court vacancies to fill in his first term.  It is true that one of the most liberal members of the Court, John Paul Stevens, is 88 years old, but mere age is no impediment to continued service in the most powerful gerontocracy since Leonid Brezhnev’s Politburo, and it is possible that Stevens will be on the Court when the next President leaves the White House.  And the rest of the Court is of an age that makes continued service through the next four years likely.

More significantly, Republican fixation on Supreme Court appointments is a sign of political timidity at best, or a Machiavellian disregard of social conservatives at worst.  The Constitution actually gives Congress tools to use against an activist judiciary, including judicial impeachment and the authority to restrict the appellate jurisdiction of the Supreme Court.  But the GOP has steadfastly refused to use those tools.  And the Republican track record on Supreme Court appointments is only a little short of disastrous, including such liberal stalwarts as Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, and David Souter, and such feckless moderates as Sandra Day O”€™Connor and Anthony Kennedy.  Indeed, Blackmun authored Roe v. Wade, and Souter, O”€™Connor, and Kennedy reaffirmed it in their joint opinion in 1992’s Planned Parenthood v. Casey decision. And it is useful to remember that even though Chief Justice Roberts and Justice Alito are widely assumed to favor overturning Roe v Wade, the same was said of a Supreme Court to which Ronald Reagan and George H. W. Bush had appointed a majority of the justices”€”the Casey decision showed just how wrong such thinking had been.

There is good reason to think that the many disappointments conservatives have experienced from the Supreme Court have been the result of more than bad luck.  In strictly Machiavellian terms, it is in the best interests of the Republican Party to keep Roe v. Wade the law of the land.  This allows Republicans to keep alive an issue that causes millions of Americans to reliably vote for GOP presidential nominees, while also not alienating powerful pro-choice Republicans”€”a group that includes many corporate donors as well as such famous persons as Nancy Reagan, Barbara Bush, and Laura Bush.  As long as the abortion issue is safely in the hands of the Court, Republicans can tantalize pro-life voters with the prospect of future nominees while continuing to blame the Court for lack of progress on the issue.  Indeed, Robert Novak, in his outstanding memoir Prince of Darkness, reports that George H. W. Bush appointed David Souter to the Supreme Court knowing full well that Souter favored Roe, despite the many promises Bush had made to pro-lifers over the years. And Souter’s champion in the Senate was John McCain’s friend and ally, former New Hampshire senator Warren Rudman, who knew of, and shared, Souter’s pro-abortion views.

In order for Roeto be overturned, we most likely need a president who is profoundly committed to the pro-life cause, who has a track record of regularly and passionately speaking out in defense of the unborn, and is in fact willing to impose a pro-life litmus test on his Supreme Court nominees. Unfortunately, John McCain’s words and deeds show that he will not be such a president. We can only hope that, if McCain does get to make nominations to the Supreme Court, his nominees will be far better than we have any rational basis to expect.


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