Special Report

Dr. Dobson and Justice Bork

How angry conservatives saved Roe v. Wade in 1986. What repercussions will today's anger have?

By 10.23.07

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Conservatives were upset.

It was October 1986. Ronald Reagan, just returned from Reykjavik, Iceland and what would eventually be recognized as the Summit that began to push the Soviet Union over the brink, was giving the fall mid-term election campaign everything he had. The objective: saving the seats of twelve Republican first-term senators who had been swept into the first GOP Senate majority since 1954 with Reagan's 1980 election.

These twelve had helped provide the margin that controlled the Senate and thus enabled the passage of the Reagan agenda. In addition to supporting the new president's tax and budget cuts, they were key in one other area. Reagan had campaigned as an opponent of Roe v. Wade, the famous 1973 Supreme Court decision legalizing abortion by legal fiat. Not every Republican elected to the Senate on his coattails agreed with him. Pennsylvania's Arlen Specter was, for example, firmly pro-choice. Yet taken together the presence of all these freshmen, Specter included, meant among many things that the GOP controlled the Senate Judiciary Committee. That was critical to the confirmation of Reagan's Supreme Court appointees, in particular when he elevated Associate Justice William Rehnquist to Chief Justice and filled Rehnquist's seat with the fervently anti-Roe Judge Antonin Scalia. Specifically this meant that it was Republican chairman Senator Strom Thurmond of South Carolina who controlled the scheduling of confirmation hearings and, working with GOP Senate Majority Leader Bob Dole, ensured that Reagan nominees would quickly get up-or-down votes on the Senate floor. And swift confirmation.

But as Reagan and those of us on his staff found out as the 1986 election proceeded, there was a problem. Or should I say a real dilemma? It proved to be a problem with serious if unintended consequences.

Several members of the 1980 freshman GOP class had managed to antagonize or simply fail to impress the conservative base in their respective states. Sometimes the reasons were different, sometimes the same. Charges of arrogance and being out of touch surfaced with North Dakota's Mark Andrews, something I discovered in person when speaking at a GOP state-party gathering in Bismarck. Allegations that she was a weak lightweight was a cross for Paula Hawkins of Florida. Washington's Slade Gorton was suspect as a closet-liberal. Alabama's war-hero Jeremiah Denton, a Vietnam POW and former Navy admiral, just hadn't clicked as a politician, coming across as out-of-touch with his constituents. There were gripes about Mack Mattingly of Georgia and the newly appointed James Broyhill of North Carolina, a congressman and reliable if colorless conservative who had been appointed to the Senate upon the death of 1980 winner John East. South Dakota's James Abdnor, who had famously ended the career of no less than liberal icon George McGovern was being portrayed as a mumbling bumbler, nothing like the younger and more articulate Democrat Congressman Tom Daschle, a favorite of lots of South Dakotans of all stripes.

All of this meant one thing. Reagan would have to make the case for these Senators himself. And so he did.

Hour after hour that fall Reagan walked along the colonnade bordering the White House Rose Garden with one endangered Senator or another, trailed by campaign cameras. Ever the professional actor he never missed a step as he immersed himself in the minutia of filming TV commercials, totally engrossed in "conversation" with Senator X or Senator Y or Senator Z. Eventually these one-on-one commercials would spill out of the television screens in the individual Senator's home state at a strategic moment, proudly showing the struggling legislator shoulder to shoulder with Reagan. The ads were so popular that the White House received an indignant note from a Republican congressman enclosing literature bearing dummied photos of Reagan with his Democratic opponent. GOP House members began demanding equal time on tape with the Senators.

In one case, a conservative Pennsylvanian was ready to jump into the Pennsylvania Senate race after freshman Arlen Specter had already been re-nominated in the primary. I was dispatched by my boss, now Indiana's Republican Governor Mitch Daniels, to meet with this conservative and show him what was still unseen -- the commercial of Reagan walking with Specter along the Rose Garden, telling Pennsylvanians why they should re-elect Specter. Face to face with this, the conservative wisely decided not to make Pennsylvania's Senate contest a three-way race, something that would inevitably draw votes that Specter would need (and got) to defeat the ultra-liberal Democrat Congressman Bob Edgar. In another instance a Washington state conservative called me, incensed that Ronald Reagan would be supporting Slade Gorton. For an hour I tried to persuade this person that not supporting Senator Gorton for re-election would be a mistake that would come back to haunt conservatives at a later date. No sale.

And Reagan hit the road, relentlessly. In his mid-seventies he willingly assented to being tossed repeatedly around the country for rallies with GOP Senators, pleading the conservative cause.

It didn't work. Seven of the twelve went down to defeat and the GOP lost control of the Senate.

Seven months later, on Friday, June 26, 1987, Justice Lewis Powell (who had cast a vote in favor of Roe) announced his resignation as an Associate Justice of the Supreme Court. Reagan immediately nominated Judge Robert Bork.

THE BORK EPISODE HAS, justifiably, been told and retold. But often left out of the telling is how the conservative complaints about various freshmen GOP Senators the year before affected the Bork nomination.

The unhappiness with Mack Mattingly in Georgia meant a 50.9%-49.1% loss to liberal Congressman Wyche Fowler. The heroic but un-political Jeremiah Denton sailed to a 50.9%-49.1% loss to Democratic Congressman (and later GOP Senator) Richard Shelby. In North Carolina, James Broyhill lost 48.1% to 51.9 to liberal ex-governor Terry Sanford. The decision to punish North Dakota's Mark Andrews resulted in Andrews losing 49.8% to 49.0% to liberal Kent Conrad. In South Dakota, the well-liked Tom Daschle was launched on a career that would take him to the post of a very liberal Senate Majority leader, defeating Jim Abdnor 51.7% to 48.3%. And in Washington, Slade Gorton went under 51.2% to 48.8% to liberal ex-Carter cabinet member Brock Adams. Only in Florida was there a significant margin of defeat, with Paula Hawkins losing to the popular Bob Graham 55% to 45%.

In other words, six of these seven lost Senate seats were close races, in some cases heartbreakingly so. In Pennsylvania, Arlen Specter, with the support of disgruntled conservatives, trounced his liberal opponent by over 13 points.

The effect on Judge Bork's nomination the following summer and fall was fatal. Now in control of the Senate Judiciary Committee, with Strom Thurmond replaced by Delaware Democrat Joe Biden in the chair, liberals constructed a political hanging -- or as it is now called with very good reason a "borking" -- for one of the most distinguished legal minds of his generation. Right from the get go, Biden, with the assistance of colleagues Ted Kennedy and Patrick Leahy, effectively handed control of the Committee process to a small collection of liberal special interest groups determined to preserve Roe (and a lot else) at all costs. Without the presence of Mattingly, Denton, Broyhill, Andrews, Gorton, Hawkins and Abdnor to make a majority Republican Senate and put Thurmond in the chair to keep any semblance of fairness and support, they were well on the way to succeeding by the time the 1986 returns were in.

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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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.