Well, I was wrong about one thing concerning the Supreme Court nominee: Bush did not choose a minority or woman judge in order to use those qualities to quash dissent by claiming racism or sexism. Instead, he went fundie all the way: a relatively young straight white male, a solid conservative with little if any paper trail. In other words, a white Clarence Thomas. Someone who seems like a straight arrow, but with very little experience (He has been a judge for all of two years); there’s not much in the way of substance you can object to because there isn’t much substance in the first place. Bush is throwing a fast ball right over home plate, daring the Democrats to take a swing at it. And there’s one thing motivating the Democrats to take that chance: Roe v. Wade.
Bush met with a lot of people before announcing his choice (a week early, clearly intended to take the heat off of Rove), but it’s clear that he kowtowed to one constituency only: the fundamentalist right, which is as happy about Roberts as it was scared of Gonzales. Roberts is their boy. And rather hardcore, at that: not only has he stated an aversion to Roe, he also filed briefs to the Supreme court in favor of a ban on flag burning and to allow prayer in public schools.
But it is Roe that is catching everyone’s attention. The conservatives are pooh-poohing the idea that Roberts is against Roe, and you can easily understand why they might try: a very big majority, 68% to 29% (and that majority is growing with time), believe Roe v. Wade should be upheld. So the right wing is pointing to one quote by Roberts in his confirmation hearings to the circuit court a few yours back, where he said that “Roe v. Wade is the settled law of the land.” However, this statement is meaningless, as it only refers to Robert’s willingness as a lower-court judge to bow to a Supreme Court decision. If Roberts is confirmed and goes to the Supreme Court, he will no longer have to bow to the bench he sits at. In fact, in 1991, Roberts made quite clear his feelings about Roe:
We continue to believe that Roe was wrongfully decided and should be overturned… The Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.
Some call this “contradictory” to his 2003 quote, but since that later statement referred only to a lower court position and gave no clue whatsoever about how he would rule on the Supreme Court, they don’t contradict at all: both can be stated by an anti-Roe conservative. The “settled law” quote is little more than a weasel, an attempt to mislead and keep the truth off the record.
In fact, it is more likely he’s anti-Roe: Roberts claimed that he was simply stating someone else’s case, but his letter-of-the-law-but-not-the-spirit conditional response in 2003 made it clear he was against Roe but wanted to avoid answering that question. If he was pro-choice or really didn’t care which way the case went, he would have said so. And the way conservatives are acting, it’s just as clear that they believe this too, and are only in mock denial about Roberts being anti-Roe, while giving a wink and a nod to their pro-life constituents.
Not to mention, of course, that Roberts’ career has been at the heart of conservative politics. From 1980 to 1981, Roberts clerked for the notoriously extremist right-wing Rehnquist. From 1982 to 1986, he served as a Reagan White House counsel. From 1989 to 1993, he worked for Bush 41 as Principal Deputy Solicitor General under Kenneth Starr, when he wrote those briefs that the wingnuts want us to believe weren’t his opinion; he was nominated for the appeals court by Bush 41 in 1992 (and was rejected by the then-Democratic Senate), and he was subsequently a corporate lawyer. He worked for Bush-Cheney in 2000, and gave critical advice to Jeb Bush to block recounts in the incredibly partisan battle to get Bush appointed president. Bush then obligingly gave Roberts a circuit court seat in 2003. It would be hard to find a judge with even more conservative credentials than that.
When Roberts was a White House counsel, he worked for Fred F. Fielding, who now says, “I know he’s conservative by talking with him about issues. … [Roberts supported expansive presidential powers and tended toward a] more literal reading of the Constitution.” It is therefore highly doubtful that Roberts is a closet pro-choicer who just happens to have been a rabid conservative all these years, forced to write legal briefs he personally disagreed with.
This year, in late November, two cases dealing with abortion are coming up. And even if the court continues to uphold Roe v. Wade, Roberts is, as a young conservative whose opinions will shape the court for decades to come, dragging the court towards the elimination of reproductive rights in this country. Already 30 states are ready to outlaw abortion should Roe be overturned.
Therefore, the Democrats have to stand up on this one. Naturally, they would like to be able to do it on some personal scandal or other quick-and-easy side point, but the likelihood is that this will not come up. And either way, I think that the Democrats standing up on Roe v. Wade is best. If a Clarence Thomas-like scandal does come up, the Republicans know very well how to handle that–and if the scandal is overcome, the Democrats will not be able to object as strongly on ideological grounds. Furthermore, upholding Roe v. Wade is worth taking a stand on, completely based upon its merits.
Now, Republicans will probably all support Roberts, at least enough to get a 50+1 majority, meaning that this will come down to a filibuster. And if that happens, the GOP will, without doubt, claim that the Democrats violated the “extreme circumstances” clause of the prior agreement to avoid the nuclear option (anyone who honestly claims that an anti-Roe Supreme Court nominee in not an “extreme circumstance” for a Democrat is an idiot), and may well attempt again to do away with the filibuster. And if they are successful in that, then Roberts is a lock for the position.
However, it is not assured that the Republican Senators will be so solid on this. Two-thirds of the American people solidly support Roe v. Wade. Furthermore, a similar 2-1 majority of Americans are opposed to doing away with the filibuster. As a result, Republicans could be in for a very bloody fight: if they go all the way on this, setting off the nuclear option and putting an anti-Roe judge on the Supreme Court, they could be pissing off most independents and even many Republicans–and next year is an election year. This could, in a way, be for the Democrats what gay marriage was for the GOP: a wedge issue that could tilt the balance of power come the next election. An unwavering Democratic stand on the issue would only make the influence of all of this more significant and visible come next fall.
This could be seen as a do-or-die turning point for the Democratic Senators. If they can’t put up a fight when two-thirds of the country is behind them, then maybe we need some new Democratic Senators.