Terry Neal in the WaPo has by the far the most useful piece on abortion and the Roberts nomination that I've seen. You should really read the whole thing, because it details Bush's history on statements about the issue, as well as the strategic thinking behind his occasional caginess.
What's most useful, I think is way Neal frames the debate:
The fight over John Roberts's nomination to the Supreme Court isn't only about abortion, but that's a big part of it.
Sure, there are other issues -- civil rights, gay rights, property rights and so on -- but abortion looms large over them all. Make no mistake -- abortion is one of the main things President Bush had in mind when he declared in announcing the nomination a couple weeks ago that Roberts will "strictly apply the Constitution and laws, not legislate from the bench." So whatever Roberts really thinks about abortion, many on the left are assuming he will work to overturn Roe v. Wade if he takes a seat on the high court.
It's that there are a whole host of social issues that are at stake, but Roe is the hot-button that everyone talks about. It's therefore useful that Neal reminds us of a few things:
"When he says strict constructionist, it's a code word," said Kim Gandy, president of the liberal National Organization for Women. "I don't think that there are many layers of complication there. He has been very straightforward I think in saying to his supporters that he wants Roe v. Wade overturned. He says he doesn't have a litmus test, but it's very clear that he does have a litmus test. Out of some 200 judges he's appointed to the bench, they've all opposed choice. As far as I know, not one is pro-choice."
Gandy argues that not just abortion but a whole range of issues -- from Title IX, to affirmative action, to property rights, to birth control, to the Americans with Disabilities Act -- is at stake based on whether Bush's nominee considers himself a strict constructionist by Bush's standard. And because many key issues were decided on a 5 to 4 basis, with the departing Sandra Day O'Connor often the swing vote, much is at stake if Roberts's confirmation changes the ideological bent of the court.
Most people, however, agree abortion won't be one of the key issues. The court is solidly 6 to 3 in favor of Roe v. Wade; at most, Roberts's confirmation could make it 5 to 4. Even if the Supreme Court overturns Roe, it doesn't make abortion illegal; it would merely allow each state to make its own laws regarding abortion.
Isn't it funny to read that there is some consensus about how abortion isn't really a "key issue" in an article about how abortion "looms large" in the Roberts nomination? Neal goes on, talking to Wendy Long, of the Judicial Confirmation Network:
Asked whether this sort of judge would view Roe as inappropriately decided, she argues that abortion on demand is not in the Constitution.
"I'm in very good company even among liberal constitutional scholars and commentators," she said. "It is among serious scholars -- legal and constitutional scholars -- widely agreed to be a very poor constitutional decision."
She is quick to add: "I don't know what Judge Roberts believes. That's what people on the other side don't understand. We are not looking for particular outcomes in particular cases. We are looking for someone who has an approach and methodology of being faithful to the Constitution."
In other words, strict constructionism is not about abortion. But it kinda is.
That last little bit accurately captures the way in which the Roberts nomination battle is just a metaphor for the sorry state of American political discourse. Neal's summary is correct. Everyone would like to believe that the nomination isn't just about abortion, but it really is. Not because most people in politics really have strong beliefs about abortion (though, obviously, some do), but because the issue has been around for so long, and has paid political dividends to both parties, that this is just one more excuse to grandstand about it.
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