Old Atlantic beats fresh Newsweek

NewsweekJuly11<Andy Rooney voice>Did ya ever notice that, for all the fuss about Supreme Court justices appointed by Republicans, Roe vs. Wade still stands?</Andy Rooney voice>

Benjamin Wittes, an editorial writer for The Washington Post, raised this point in the January issue of The Atlantic:

Republicans have put seven of the nine current justices on the Supreme Court — and they still have only one more anti-abortion vote than they had in 1973, when the decision came down 7 to 2. Where reproductive rights are concerned, the bark of a conservative nominee is frequently worse than his bite — as three justices nominated by Ronald Reagan or George H.W. Bush proved in 1992, when, in Planned Parenthood v. Casey, they voted that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

“I generally favor permissive abortion laws,” Wittes writes, but in his essay “Letting Go of Roe” (subscription required), he argues that the long-term cause of abortion rights may actually be better off if Roe were to fall.

Wittes continued in this contrarian groove in the April Atlantic, playfully wondering if the forthcoming judicial confirmation ordeal is more trouble than it’s worth:

Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the confirmation process is going to be an ugly spectacle. Democrats will wax indignant about a “rollback” of the hard-won gains of the civil-rights movement — indeed, of our fundamental rights more generally. Republicans will whip themselves into a frenzy over the impropriety of opposing nominees because of their “ideology.” Some poor nominee will have his or her name dragged through the mud. If the Democrats successfully filibuster, we may have to repeat the whole process with another candidate. And after all the fuss, Bush will get what he wants anyway: a conservative chief justice. Why don’t we dispense with the song and dance?

(Wittes helpfully writes that he’s “almost” serious with that last sentence.)

Amid breathless headlines like Newsweek‘s “The Holy War Begins: Bush must choose between the big tent or the revival tent” (paging the Rev. Elmer Gantry), let’s step back, take some deep breaths and read another paragraph from Wittes:

President Bush knows that he’ll have a fight on his hands if he sends up a die-hard right-winger. And although it’s impossible to divine from the proceedings how a given justice will evolve over time, or what issues will define his tenure, the president’s awareness of the possibility of Senate rejection encourages accommodation and consensus. The major value of the Senate’s proceedings, in other words, lies not in anything we might learn from them — which, if history is any guide, will be negligible — but in the president’s knowledge that they happen at all.

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  • Jon

    Clinton appointed two liberal justices. Republicans approved them, because they were qualified. It is the duty of the president to appoint justices, and it is assumed that the president will appoint justices who agree with his judicial ideology. Why, for heavens sake, should a president appoint a justice he is at odds with? Yet democrats consistently rail against Republican appointees, despite the fact that every moderate on the judiciary was appointed by a Republican. They should just give a yes or no vote on whether the nominee is qualified and then proceed to shut their mouths.

  • jjayson

    There is just a flood of bad Supreme Court articles and more coming down the river. None of them get the proper division down. The Supreme Court doesn’t fall along political liberal and conservative lines. Calling judges “right-wingers” doesn’t make any sense. Would a political “right-winger” have voted to allow state determination of medical pot in Raich?

    The proper division is in how the judge views the Constitution. Is is a living document that isn’t meant to be taken literally, and its meaning can change even though its words do not? Or is it given the degree of literalness that all other laws receive, and the original intent of the Framers is important to understanding how it applies today?

    A political right-wing judge can believe in a Living Constitution, and even though he or she may vote to reverse Roe, they may have sided with the majority in Kelo. Most Republicans want an a strong originalist to be appointed. Of course, they naturally see reversing Roe as an end result of applying that philosophy, but that result isn’t the correct place to draw the line.

    If Bush appoints another Souter to the Court, even a Souter that wants to upend Roe, expect Republicans to get clobbered in the mid-terms and next Presidential election since all the small government Republicans might not feel like showing up.

  • Michael

    Actually, a “right-winger” would support state law over federal overreaching in the pot case. It’s called federalism, a building block of American conservatism.

    Still, your point is a good one.

  • http://paragraphfarmer.blogspot.com/ Patrick O’Hannigan

    Note that Newsweek cover. O’Connor was on an “odyssey” (good connotation) because she moved from “center” to “mild left.” Had she joined Scalia and Thomas on the right, we’d be reading about her “slide” or “intransigence,” or some such– it wouldn’t be an odyssey; it would be a shame (or so suggest the mandarins of legacy media)

  • tmatt

    “To those on the religious right, anyone on the list would be preferable to Gonzales, whom they regard as a chilling reincarnation of David Souter, Bush One’s moderate pick in 1990.”


    That’s from the Newsweek piece.

    Wonderful example of the “moderate” syndrome. Who is to the left of Souter on social issues? What is it about his voting record on moral and social issues that makes him “moderate”?