I just read an article about the current make-up of the U.S. Supreme Court and how President Obama might get a few more appointments. The article noted that supporters of legal abortion are encouraged by the prospect.
Not so fast.
At this time, there appears to be 6 votes in favor of Roe v. Wade and three for reversal, although some would argue that Justice Anthony Kenney is a wild card and should he vote to repeal Roe, the tally would be only 5-4 in favor of Roe. So, worst case scenario is opponents of Roe only need one more vote.
Whatever legal analysis you wish to believe, the fact is that an Obama appointment will not guarantee anything. Indeed, we could lose ground.
Let’s say that one of the pro-choice justices retires or dies. Make it Justice John Stevens, currently a solid pro-choice vote. Obama then gets to nominate someone. As we have seen in the past, there is no guarantee that the President is going to get exactly what he wants. When the President meets the prospective nominee, he does not ask him or her about their position on abortion. Instead, they talk in vague generalities. Then the nominee goes to the Senate where they duck and dodge the tough questions for a few days. If the nominee has no track record from previous decisions, it could very well be a crap shoot.
History is ripe with examples of Presidents getting someone different than what they expected. President John F Kennedy got Byron White, a personal friend who turned out to be a conservative. President George H.W. Bush nominated Justice David Souter, who ultimately supported abortion rights and was considered a liberal jurist.
So, pro-choice groups should not be so comfortable. If a pro-choice Justice suddenly left the bench, there is absolutely no guarantee that his replacement would be the same.

February 11, 2010 at 4:40 pm
you make a very strong argument. I think this situation is definitely something of great concern.
LikeLike
February 11, 2010 at 5:42 pm
Pat, the biggest danger is in Obama seeking “bi-partisanship” in selecting a Justice. He definitely will make a bad choice if he does that. The Republicans picked Souter because in the Sixties he had actually gone outside his judicial role to confront student protestors; the Bush crowd 25 years later thought he was the same guy. They were wrong.
The process of screening is not as simple as you describe. Obama will probably use the Bar Association, as all the presidents do (even Rove and Cheney dropped their plan to have the Federalist Society take over that role from the ABA), and there will be a lot of policy discussion on the prospective choices. When they put someone forward to the Senate, they will have a very sound grasp of where the candidate is coming from– as did the Bushes with Thomas, Roberts and Alito– but you’re absolutely right when it comes to Senate appearances– it’ll all be vague generalities designed to give the appearance of informing.
As I said, the real danger sign is Obama seeking bi-partisan cooperation in the screening. That’ll be a guarantee of a real rotter coming up. The only question is, how slow a learner is he? So far, I’m not impressed.
LikeLike
February 12, 2010 at 3:02 pm
Now that he does not a filibuster-proof Senate, he is going to have to compromise. Therein lies the danger.
LikeLike
February 12, 2010 at 6:13 pm
Pat agreed, as well.
Thank you for these thoughtful insights.
I have always enjoyed your blog more than any on these issues.
The pro life commentary is always decimated by pure logic.
LJ
LikeLike
February 12, 2010 at 6:15 pm
It’s true.
We must still work hard to protect out rights to control our bodies and that includes abortion.
LikeLike
February 13, 2010 at 12:18 pm
Susan: Agreed, but let me ask a question. You say we need to “work hard” to protect women’s rights. Do you know what you can do to help protect those rights? We know most people support abortion rights, but we dont seem to be as organized as the opposition so I’m wondering if you know what you can do?
LikeLike