Abortion and the Courts: Judicial Nominations Are Imperfect but Matter

Yesterday I briefly explained the modern political history of judicial conservatism, first as a response to the excesses of the Warren Court, and later as a commitment to self-consciously coherent interpretive methodology based on the text of the Constitution. The commitment to originalism in particular soon quickly dominated Republican judicial policy in the 1980s and gained support from a diverse array of powerful institutions.

Today I will argue that this institutional support yielded rapid successes for judicial conservatism, and that breakdowns in the process of establishing judicially conservative courts occurred despite significant conservative gains, not because of cowardly Republican prevarication. I will also argue that Republicans’ embrace of judicial conservatism as an important policy has put both judicial conservatism and the pro-life cause in a remarkably good position. In the end, pro-lifers who try to marginalize or discount the relationship between judicial conservatism and the GOP only offer rhetoric that undermines important gains for the pro-life cause.

Quick Conservative Successes

The successes of judicial conservatism in the 1980s, in particular the appointment of Antonin Scalia to the Supreme Court, had a rapid and profound influence. At the time of his appointment, Scalia was “billed as the intellectual lodestar who would pull the Court to the right by the force of his brilliance.” This prediction did not disappoint. As Professor William Kelley observes, Scalia’s “vivid prose, particularly in separate opinions, and his refusal to join opinions containing analysis he found disagreeable, created something of a culture shock.”

Scalia’s presence on the Supreme Court, coupled with support from judicial conservatives in the lower courts, allowed for noticeable and immediate changes to substantive law. In the field of administrative law, to take one example, Professor Gary Lawson argues that Scalia’s presence on the Supreme Court (following his stint in the admin-law-heavy D.C. Circuit) allowed him to help spearhead a revolution in the field. While serving on the Circuit with judicial conservatives such as Robert Bork, Laurence Silberman, Kenneth Starr, and proto-conservative George MacKinnon, Scalia took a somewhat unremarkable 1984 John Paul Stevens decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., and “by imperceptible steps” turned it into a principle of agency action that upended the judicially active, process-heavy approach to administrative rule adjudication that dominated the ’60s and ’70s.

Chevron’s somewhat mundane holding was transformed into a basic principle of executive rulemaking: if a statute is ambiguous, then an agency enjoys considerable deference in its interpretation of that statute so long as it is reasonable. Once the Chevron change took hold at the Circuit, Scalia was elevated to the Supreme Court, which happened to be staffed by a large number of sympathetic D.C. Circuit clerks who helped him to establish it as a favored interpretive approach on the Court.

While the dominant Chevron “two-step” has its supporters on the left and its detractors on the right, for our purposes, it was a substantial change from previous practice in favor of “judicial restraint” grounded on firm separation-of-powers principles. It showed that committed judicial conservatism ought not to be discounted because it could be fiercely successful with the right appointment and adequate supporting institutions.

When You’re Getting Flack, You’re on Target

If the Court that decided Casey was suboptimal for pro-lifers, it was not for Republicans’ lack of trying. Anthony Kennedy (one of the joint authors of Casey) for example, was not even the second pick for his seat, but the third. The first choice, the estimable Robert Bork, would have been a judicial-conservative dream candidate. Instead, Judge Bork faced a confirmation process so sordid and unfair that his name became a verb meaning character assassination. The second choice, the similarly superlative Douglas Ginsburg, withdrew his candidacy after admitting to prior marijuana use.

Having twice tried and twice failed to appoint the best options, can Reagan be blamed for moving to a “safer” choice? There were aspects of Kennedy’s record that the Reagan Justice Department found “troubling,” but the politics of the situation suggested an imperfect solution: a confirmable “straight arrow” like Kennedy.

Sadly, the politics of the Bork confirmation, captured in liberals’ nuclear reaction to the rising influence of judicial conservatism, coupled with Democratic dominance of the Senate (55 to 45), also caused President George H.W. Bush to play the safe card when replacing ultra-liberal Justice William Brennan in 1990. As with Justice Kennedy, what-might-have-been is a very attractive scenario— Bush’s advisors first vetted Judge Kenneth Starr and later chose First Circuit Judge David Souter (like Kennedy, a Casey co-author) over Fifth Circuit Judge Edith Jones.

According to legal reporter Jan Crawford, Bush White House conservatives strongly supported the like-minded Jones, while Office of Legal Counsel official (and later Judge) Michael Luttig had specific reservations about Souter’s scant (and, where available, problematic) record on “big ticket” issues.

The nomination decision came down to the president, though, and he found the prospect of an easy nomination and stellar credentials—Souter was a double–Harvard Rhodes Scholar—too hard to pass up; he chose the candidate who was not a judicial conservative. Again, according to Greenberg, the full Department of Justice memo on Souter apparently claimed he was an originalist and textualist, but most of the glowing reviews were of the Nixonesque “pro-law-enforcement leanings” and “pro-business” sort, not the kind of comprehensive conservative constitutionalism favored by the Reagan administration and the Republican Party generally.

In going for the safe pick, Bush let the process fail. His choice, however, was ironically a rational response to the earlier firestorm created by the Bork nomination, which was, in turn, a reprehensible but rational hard-nosed response by Democrats to the rapid advances of judicial conservatism in the mid ’80s. So while the Souter outcome was far from ideal, in a sense it was a case of judicial conservatism falling victim to its own success.

That the broader confirmation process was not improved by the time Clarence Thomas was nominated goes without saying. Yet the choice of such a strong textualist and originalist to replace the other ultra-liberal Justice, Thurgood Marshall, was clearly a triumph for the renewed supremacy of judicial conservatism within the GOP. That Thomas was able to persevere (and receive the continued support of the White House) during the course of his “high-tech lynching” speaks well of the importance Republicans placed on judicial conservatism.

The tragic result of the Kennedy and Souter missteps was the Casey decision. Yet in the alternative, an intellectual movement that had only been operationalized a decade earlier very nearly would have added Scalia, Bork, Jones, and Thomas to the Roe dissenters, William Rehnquist and Byron White. Even in defeat, the ball had been moved midfield, having gone from a 7–2 defeat in Roe to a 5–4 defeat (with silver linings) in Casey. That this was almost a 6–3 victory—after only a decade of real effort—is a remarkable feat in and of itself.

I should note that I do not consider the Sandra Day O’Connor appointment in 1981 a misstep of conservative judicial policy. This is mostly so because in 1981 judicial conservatism was still nascent. Also, however, in 1980 Ronald Reagan campaigned on the promise that he would appoint the first woman to the Supreme Court. As O’Connor later recalled, “There were not that many women judges, much less many Republican women judges.” Reagan’s campaign promise had dealt him an unfortunate hand, which he had to play as best he could, finding a Republican with legislative experience (and thus presumably grasping the conservative concern over “legislating from the bench”). And while eventually O’Connor would prove maddening on issues such as abortion and affirmative action, her conservative approach to “structural” constitutional issues was remarkably consistent.

The Courts Today

While the Clinton years were an obvious dry spell for judicial conservatism, the George W. Bush administration saw some considerable successes in applying a policy of principled judicial conservatism, which yielded some real successes for pro-lifers.

Most notably, the mid-2000s saw the replacement of Rehnquist and O’Connor with John Roberts and Samuel Alito. The great extent to which the Roberts Court has advanced principles of judicial conservatism is beyond the scope of this article, but the conservatism of the Roberts Court has proved beneficial for the pro-life cause.

The clearest pro-life advance under the Roberts Court was Gonzales v. Carhart (2007). In that decision, Kennedy and the four conservatives upheld the federal Partial Birth Abortion Ban Act, which contained a “life of the mother” exception instead of the rule-swallowing “health of the mother” exception that the earlier partial-birth abortion case, Stenberg v. Carhart (2000), had required over Kennedy’s objection. Notable in the 2007 Carhart case was Kennedy’s apparent willingness to entertain future incremental pro-life legislation and his relatively forceful language discouraging future exception-based facial challenges, which had come to characterize much abortion litigation. In this respect, Carhart came on the heels of the very early Roberts Court decision from the prior term, Ayotte v. Planned Parenthood, in which O’Connor and a unanimous Court were unpersuaded that a facial challenge was the right avenue for attacking New Hampshire’s parental notification law.

The total result is a series of decisions from the Supreme Court allowing for more abortion restrictions, which are to be evaluated increasingly as they are applied—instead of being stricken down in toto following some allegedly unconstitutional theoretical application. In other words, the Republican commitment to judicial conservatism has—after 35 long years—given the pro-life movement the ability to work within the democratic process to experiment in finding new ways to advance a culture of life.

Going Forward

There is a reason why so many of President George W. Bush’s nominees to the circuit courts of appeals were well-educated, professionally accomplished, known conservatives who just happened to be as close to forty as possible. Of the current nine justices of the Supreme Court, eight were previously circuit-court judges. In the last thirty years, only Justices O’Connor and Kagan were not previously on federal circuits. If there is a papabile category for the Supreme Court, it is circuit judges on the south side of fifty or close to it.

A cursory look at that group of Republicans shows as strong a team of jurists as one could hope for—people such as Judges Neil Gorsuch, Jeffrey Sutton, Steven Colloton, Brett Kavanaugh, Raymond Kethledge, Thomas Hardiman, Raymond Gruender, Diane Sykes, and William Pryor. This will be the bulk of the pool from which the next Republican president chooses his Supreme Court nominees. (The batch of slightly older top-flight appointees—Judges Janice Rogers Brown, Thomas Griffith, Richard Wesley, Leslie Southwick, Priscilla Owen, Jay Bybee—shows just how deep President Bush’s bench was in the event that he had a third opening on the Court.) While not necessarily all originalists in the mold of Bork and Scalia, all of these judges are highly skilled in the legal craft and have articulable legal philosophies that could be called conservative. This is as good a College of Judicial Cardinals as the conservative and pro-life movements have ever seen.

Furthermore, setting aside the status of these judges as potential justices, the mere presence of these and other Republican appointees on the appeals circuits is beneficial to judicial conservatism generally and the pro-life cause in particular. At the end of July, Judge Gruender (again) upheld South Dakota’s informed-consent law. Five years ago he stopped EEOC’s lawless efforts to mandate contraception coverage under Title VII and the Pregnancy Discrimination Act. Earlier this year Judges Jones and Smith thwarted Planned Parenthood’s efforts to use the courts to perform an end-run around Texas’s popular sonogram law. In 2009, Judge Niemeyer upheld Virginia’s partial-birth abortion ban en banc.

Given the Supreme Court’s 2007 Carhart decision, the presence of conservative judges on the circuits will be crucial to advancing effective incremental pro-life legislation. These incremental changes are proven to be effective and are proliferating at the state level. Carhart also showed the importance of continuing to strengthen the conservative bloc on the Supreme Court, as the replacement of Justice O’Connor with Justice Alito allowed the Court to reverse its prior position on partial-birth abortion. Likewise, the replacement of any of the Carhart majority with a Democratic appointee would jeopardize even the most basic and widely supported abortion restrictions, such as robust bans on partial-birth abortion, to say nothing of more ambitious legislation such as sonogram requirements, informed-consent laws, fetal-pain prohibitions, or defunding abortion providers.

It also bears noting that any Supreme Court fights in the next Republican administration will lack a very important and troublesome variable from previous confirmation processes: Senator Arlen Specter. Conservative appointees no longer will be subjected to tedious questions that demean both the questioner and the questionee about “super duper precedent” by a member of their own party. Indeed, if the current composition of the Judiciary Committee is any indicator, the Senate GOP is increasingly aware of the committee’s importance and the concomitant importance of filling it with sound judicial conservatives both to help ideologically sound nominees through and to halt radical nominees through appropriate means.

Lessons for Pro-Lifers

It has been almost forty years since Roe v. Wade. Yet it has only been thirty years in which the Republican Party has had the institutional capacity to oppose Roe intelligently as a matter of judicial policy. It has only been twenty years since this institutional capacity might have been able to yield results (by the time the Court heard Casey and a majority of the Roe Court had been replaced by Republican appointees), and partly because of judicial conservatism’s successes and the effective backlash against those successes by Democrats, it failed to do so—but not for lack of trying. It has only been six years since the realignment of the Roberts Court, and already the landscape of abortion restriction is entirely different from what it was a decade ago. Just last week a Clinton-appointed trial judge upheld Arizona’s strong fetal pain law that aggressively (but plausibly) pushes the envelope of permissible restrictions under Carhart. It is hard to imagine that result without the sea change of judicial conservatism brought on by three decades of judicially conservative Republican appointees at all levels of the judiciary.

When a good strategy (e.g., the establishment of judicially conservative courts in order to promote a culture of life through the democratic process) gains ground but suffers a disappointing setback (e.g., Casey), the obvious solution is not to abandon the good strategy. When a good strategy suffers a setback (e.g., Casey) and its proponents respond by regrouping and recommitting (e.g., pro-life support for the judicial strategy of the Bush administration) and the strategy starts to yield palpable results (e.g., Gonzales v. Carhart, record numbers of state-level abortion restrictions in 2011), it is sheer folly to abandon the working strategy in favor of fantastical and perpetually failing silver bullets.

The fact is that the Republican Party’s commitment to judicial conservatism over the past thirty years has, as a matter of principle, favored and will continue to favor the pro-life movement. Because the fight to reorient the courts has been long and imperfect, it is all the more important that those committed to a culture of life see it through, especially now that it is finally creating real openings for authentic pro-life policy.