Soon, there will be a vacancy on the Supreme Court. This of course focuses attention on Roe v. Wade. From The Carpetbagger Report
Appearing on Meet the Press last weekend, John McCain, who opposes abortion rights, said he doesn't believe Roe v. Wade will be overturned, "at least not any time soon given the tenor of politics in America and the courts in America."
I don't know if McCain is deluded or just prevaricating, but make no mistake: Roe v. Wade is very much in jeopardy.
Not everyone agrees on how many current Justices would uphold Roe. The conventional wisdom is that there is a 6-3 majority on the Court in favor of Roe, with Rehnquist, Scalia, and Thomas clearly against abortion rights, and Stevens, Souter, Breyer, Ginsburg, Kennedy and O'Connor supporting the right to an abortion.
It's the last two names that are crucial. O'Connor is the one whose retirement is rumored to be immanent. Obviously, if she were replaced, Roe loses a vote. (Rehnquist is supposed to die or retire soon, but that would simply be a wash.) So if the conventional wisdom is correct, that leaves a shaky but nonetheless decisive 5-4 majority for Roe.
Even this would be extremely worrisome. Though under this scenario, Roe would likely survive the Bush administration, this isn't certain; Stevens is 85 years old, and frankly, could die at any time, giving Bush the chance to nominate a fifth anti-abortion justice, sealing the demise of Roe. Plus, even if Roe survives Bush, it is of course quite possible that another anti-abortion Republican will succeed him.
But it's not entirely clear that the conventional wisdom - that the current count in favor of Roe is 6-3 - is correct. Kennedy is extremely
wobbly on the abortion issue. Even though Kennedy joined with the majority in upholding (limited) abortion rights in Planned Parenthood v. Casey, some people believe that if a challenge to Roe were to occur now, Kennedy would flip to the anti-abortion side. Indeed, he very nearly did so
in 1992, and Roe almost bit the dust.
If one counts Kennedy as a vote against
abortion rights, the current tally becomes 5-4 in favor of Roe, which means that an O'Connor retirement coupled with a successful anti-abortion nomination by Bush gives the anti-abortion justices a 5-4 majority, and the next time Roe v. Wade is challenged before the Supreme Court, it dies.
So the stakes, obviously, are high. With GOP control of the House, Senate, and Oval Office, the only thing preventing the criminalization of all abortions is the Roe v. Wade decision. Abortion opponents know this. Via Common Sense Desk
, Charlie Quimby reports that the opposition has already launched a pre-emptive strike
FactCheck.org reports the latest pre-emptive strike by the Administration (technically, a pro-Bush group). This time it's not against Iraqis who haven't attacked America. It's against Democrats who haven't attacked Bush's Supreme Court nominee, who hasn't been named for a vacancy that doesn't exist.
A pro-Bush group fired the opening salvo - they call it "a warning shot" - in what threatens to become a multi-million dollar advertising and public relations campaign over a possible Bush appointment to the Supreme Court. The ad predicts "Democrats will attack anyone the President nominates," saying that " a Supreme Court nominee deserves real consideration, instead of instant attacks."
But this ad itself is an attack that goes beyond "instant" - it was launched without waiting for Bush to name a replacement for the ailing Justice William Rehnquist, or even for Rehnquist to say publicly whether or not he will retire as he is reported to be considering.
...Nothing like a couple heavy bombing runs to soften up the opposition.
It's hard to imagine, though, that Bush would nominate anyone whom we could trust with safeguarding abortion rights. Alberto Gonzalez, whose name is often floated as a possible replacement for a retiring justice, is something of a question mark on abortion:
Some conservatives openly worry that Bush would appoint White House counsel Alberto Gonzales, a former Texas Supreme Court justice and longtime friend, who they fear has moderate-to-liberal views on abortion rights, particularly on the issue of parental consent. "Gonzales is someone the pro-life community would be very concerned about," Wood said.
But given the Rove-Bush philosophy of 'playing to the base', the likelihood of Bush nominating an abortion rights supporter seems remote. At any rate, it is certainly not something we can count on.
However you slice it, the future of Roe v. Wade is up in the air. Protecting it is absolutely vital, and no Democrat should cast a vote for any Bush nominee who can't be trusted to do so. This is a real test for Democrats; while it will be difficult, and perhaps even impossible, to defeat a Bush nominee in a GOP-controlled Senate, they damn well better try.
The Center for Reproductive Rights
is calling for 'full disclosure' from Bush nominees on the issue of abortion, meaning any nominated judge would have to make explicit whether or not he or she would vote to uphold Roe. The Democrats should join them in this, and then, if a nominee says that he or she would not uphold Roe, they should do everything they possibly can to make sure that person never ends up on the Court. Any
Democrat who dares to vote to confirm an anti-choice judge should be a pariah, and liberals and progressives should see to it that they are driven out of office.
The Democratic Party is likely to wilt if left to its own devices; it is up to progressives to hold their feet to the fire on this issue. It is no overstatement to say that the future of women's reproductive rights depends on it.