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Bork, a resolute and sharp critic of the Roe decision, lost. Every single replacement for the defeated seven freshman GOP senators voted against him. After a similar and appallingly fast dispatch of Reagan’s next nominee (Judge Douglas Ginsburg — undone when a liberal acquaintance revealed he had smoked marijuana — withdrew) the replacement was Californian Anthony Kennedy. Justice Kennedy, in what doubtless would have greatly disappointed Reagan, turned out to be all too susceptible to the idea that his conservative principles could be, well, relative.
With the release of the papers of Roe’s author, Nixon appointee Harry Blackmun, Justice Blackmun himself reveals that Kennedy was poised to agree with a draft opinion of Chief Justice William Rehnquist that would essentially overturn Roe. Under pressure from Blackmun, Kennedy did something that would have been unthinkable for Bork: he switched sides, turning a 5-4 decision in Planned Parenthood v. Casey from an opinion overturning Roe v. Wade into one that reaffirmed it.
In other words, the loss of seven Senate Republicans, six by the closest of margins, saved Roe v. Wade. More accurately, a relative handful of conservatives in Alabama, Georgia, North Carolina, North Dakota, South Dakota and Washington, by either taking a pass on the election entirely or actually voting for the liberal, inadvertently rescued the most controversial Court decision of our day.
And in Pennsylvania? Yes, Arlen Specter famously was anti-Bork. But his mere presence on the committee, if backed by the presence of those 7 missing Republican Senators in the larger chamber, would have given control of the committee to Thurmond, not Biden. A mere four years later it was Specter who helped save Clarence Thomas from Bork’s fate — and just these past few years, this time as chairman himself, Specter came to the defense of now Chief Justice Roberts and Justice Alito, voting for both men as well. In the full glare of the television lights during the Alito hearing, in one tense exchange with Senator Kennedy, Specter illustrated precisely the importance of voting for Republican candidates that have a less than perfect conservative record. When Kennedy began making a series of demands Specter instantly snapped, “I’m not concerned about your threats….I’m not going to have you run this Committee. I’m the Chairman of this Committee.” And with that, Specter angrily banged the gavel and moved on. Alito, of course, was finally confirmed — with Specter’s support. Upset with Specter, Pennsylvania conservatives voted for him anyway in the 1986 general election — and made a considerable contribution to the conservative cause in doing so.
WHICH BRINGS US TO THE RECENT COMMENTS of the Reverend James Dobson and the Washington gathering of Evangelical Christians this past weekend. A strong pro-life leader, Dobson’s sentiments eerily echo the complaints made by conservatives about the losing seven senators in 1986. There are reasons, Dobson insists, why he simply could not support a Giuliani, Thompson or McCain if nominated. Just as conservatives back then had their own reasons not to support the seven losing GOP Senators. Dobson goes on to speak of “moral principle” and opposes the idea of looking at an election choice as involving “the lesser of two evils.” Dobson wouldn’t vote for Hillary or Obama or Edwards, of course. He just wouldn’t vote for the GOP nominee. Indeed, Bill Stephens, the executive director of the Christian Coalition of Florida is quoted in the Washington Post this past week as saying: “Our voters would rather stay home then vote for half a loaf of bread. They either want the whole loaf, or they’ll wait for the next time.”
The problem with all of this is that we know with certainty, from real time experience, exactly where this leads the conservative movement. There has been no “next time” for overturning Roe. And certainly, if one believes as so many Evangelical Christians fervently do, that abortion is a horrific moral disaster for the baby, the mother and America at large, the decision to indulge in what one could call “whole loaf politics” in 1986 has resulted in a very, very steep price for all three in the 21 years that have now passed. Was the display of pique aimed at these Republican senators really worth it? The Dobson philosophy, minus Dobson, was tried in key senate races across America in 1986. As a direct result, when Chief Justice Rehnquist circulated a draft Supreme Court opinion in 1992 that would have effectively overturned Roe v. Wade, Justice Bork was not there to agree.
Unintended consequence as it may have been, the startling but very hard fact is that Roe is still the law of the land due to conservatives themselves.
Each and every Republican candidate for president in this 2008 race has pledged to appoint conservative judges in the mold of Justices Scalia, Thomas, Roberts and Alito. Because of the disappointment with what has now turned out to be the watery conservatism of Reagan’s choices of Sandra Day O’Connor and Anthony Kennedy (not to mention the first President Bush’s disastrous pick of Justice David Souter), the selection by George W. Bush of White House Counsel Harriet Miers, who had little on the record to reassure she would not be another Kennedy or Souter, was instantly and vociferously fought by the conservative base. Successfully. The lessons of not appointing thoroughly vetted conservatives to the bench had been learned. (Although this battle did not get the early, needed assistance of Reverend Dobson, who said, albeit with “fear and trepidation” that “Harriet Miers will make a good justice.”)
If in fact a President Giuliani, McCain, Thompson or Romney were to make the same mistake, deliberately or by accident, it takes no imagination to understand that such a nominee would be “Miers-ized” immediately, hopefully with Reverend Dobson on the team this time.
James Dobson has been a good friend to the conservative movement. A genuine leader. And Evangelical Christians are a vital part of the conservative coalition. But one wishes he and they would go back and take a more in-depth look at exactly why Robert Bork is not Justice Bork right this minute and why Roe v. Wade was not overturned in 1992. The reason, of course, is that just enough conservatives thought like James Dobson in 1986. Bare percentages of conservatives in six states decided, for varying reasons, to “stay home (rather) than vote for half a loaf of bread.” So believing, they would not even listen to President Reagan.
The potential irony in all of this for James Dobson and Evangelical Christians is that by absenting themselves from active support for whomever the next GOP nominee may be, it would in fact be they themselves who have effectively sealed Roe v. Wade into American law forever. A version of this has already happened in 1986. Can it happen again? Yes, it can.
An amazing thought, no? Roe v. Wade: the conservative legacy.
Somewhere, the late Justice Harry Blackmun must be smiling.
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