A friend who reads my blog asked a question that I thought was very pertinent. And then I spent time researching and answering the question, so I figured it would make a good post. Rick’s last reply suggested that someone should send Joe Biden a copy of Archbishop Chaput’s new book on Catholics in politics, Render Unto Caesar, as a Christmas gift. 😀
Rick’s question: The Supreme Court is made up of mostly appointees from Republican presidents–there are only two (Ginsburg and Byeyer) who are appointed by a Democrat president (Clinton). I’m assuming all or most of the other 7 appointees are Conservative, except for maybe Justice John Stevens, who is considered a moderate (he took Rehnquist’s seat, I understand).That’s my knowledge of the Supreme Court.
So, we’ve had a conservative court for a long time with a conservative president. We (Pro-Life folks) vote for conservative presidents and senators to appoint (the pres) and approve (the Senate) conservitives to the Supreme Court in hopes that one day Roe v. Wade will be overturned. My question is–(and I’m assuming here that we have a majority of conservitives in the Supreme Court) why hasn’t this come up or what does it take to overturn this federal law? We had a conservative president for eight years and from what I understand, nothing has happend to overturn Roe.
PH’s Answer: The problem is that it isn’t quite as easy as Republican appointee= conservative justice. Several of the Reagan appointees turned out to be not very conservative at all (or were swayed by the liberals). (Justices listed by name (president who appointed them, and age))
Chief Justice John Roberts (GW Bush, 53), Samuel Alito (GW Bush, 58), Antonin Scalia (Reagan, 72), Clarence Thomas (GHW Bush, 60) – very conservative (as in “strict interpretation of the Constitution” aka Strict Constructionist or Originalist)
Anthony Kennedy (Reagan, 72) – the swing vote (and, with the four above, one of five Catholics currently on the Court) In the 1990’s, he turned pro-abortion and pro-gay rights; conservatives were, to put it mildly, not happy. A few years ago, he agreed with the liberal majority in the decision to allow a city to use eminent domain to seize private property to hand it over to private developers. He has advocated the use of international law to interpret U.S. law.
The five justices above upheld the Constitutionality of the Partial Birth Abortion Ban. It was struck down by the Court previously, before O’Connor (very liberal) retired and was replaced by Alito.
Ruth Bader Ginsburg (Clinton, 75) – of “well, abortion has to be legal because women made decisions based on its remaining legal” fame. Definitely pro-Roe v. Wade. Way left.
David Souter (GHW Bush, 69) – leans mostly left
Stephen Breyer (Clinton, 70) – definitely left
John Paul Stevens (Ford, 88) – definitely leaning left, although he used to be “moderately conservative” and described himself last year as a “judicial conservative”
Reagan also appointed Sandra Day O’Connor, who was very liberal. So, Reagan appointed one reliable conservative, one liberal, and one unpredictable justice who usually goes left on moral issues. Not a great record on justices. Ditto on GHW Bush: he gave us one conservative, one liberal. Clinton got two liberals put on. GW Bush got two conservatives.
The problem seems to be that Republicans (specifically, Reagan and GHW Bush) try to “play fair” and appoint good judges, regardless of their specific views (or are forced into that position by Democrats refusing to accept non-pro-abortion nominees). As McCain said during the campaign, he voted for Breyer, since he was a qualified judge, and, “Elections have consequences.” i.e., it was Clinton’s prerogative to appoint who he saw fit, and the Senate should give the appointee an up or down vote based on their credentials only.
Democrats, on the other hand, will only appoint or approve pro-Roe vs. Wade judges. As Biden said during the VP debate, he learned that it wasn’t just important to vote on whether the appointee was a good judge or not, one had to ask if they were pro-“privacy rights” (code for pro-abortion) enough or not. The term “Borking” refers to the nasty smear campaign Biden led as the chair of the Judiciary Committee to discredit and abuse Bork, a conservative nominee (Kennedy was eventually approved for the spot instead).
So, there’s the problem: yes, we have seven of nine justices appointed by Republican presidents, which would seem to say they should be conservatives/strict Constitutionalists/Originalists or whatever you want to call it. But they aren’t. Before O’Connor retired, you also had seven of nine justices appointed by Republicans, but five solid liberals and one usually liberal justice.
From what both Sen. Obama said during the campaign and Sen. Biden’s awful record on the matter, it is clear that only strict pro-abortion judges will be nominated by the coming White House. The main hope at this point is that only liberals retire.