Forum: A Roe of dumb deeds

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The latest in the Supreme Court's "abortion jurisprudence," Gonzales v. Carhart, is a mere judicial tip-of-the-hat to the Legislative Branch that it may forbid one method of infanticide so long as viable options exist by which the "do no harm" medical profession may render dismembered and blenderized a theretofore perfectly viable human being, whose principal offense is that he cannot vote.

The long-line of "abortion jurisprudence" began when Leftist activists used popular literature, pop psychology references and trendy political rhetoric (the three most powerful influences on the modern Very High Court) to inflame the Supreme Court into fabricating a so-called "fundamental right" that cannot be found in the Constitution or, indeed, in any of the court's precedents prior to 1973, when the court undertook this act of political usurpation.

But for justices appointed by Republican presidents (William Brennan, Potter Stewart, Harry Blackmun, Lewis Powell and Warren Burger on Roe v. Wade and John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, and David Souter thereafter) the court would neither have taken nor sustained this power grab. In that sense, Republican ineptitude is responsible for the nation's plight.

President Reagan opposed abortion (not as strongly as conservatives wished) even though public opinion polls would have led him to support it. Because of Reagan's position, his running mate, George H.W. Bush (the elder), during the 1980 campaign came also to oppose abortion. Both presidents spoke out often against abortion during four Presidential campaigns and 12 years of their presidencies, as has George W. Bush (the younger) consistently, albeit much more forcefully than his predecessors.

Reagan was warned that Justice O'Connor would almost certainly vote to sustain Roe. Yet, he liked her, ignored this warning, and, in an act of willful blindness, committed the gravest error of his administration in nominating her to the court. While Reagan also received clear warning that Justice Kennedy would be like Justice O'Connor, his nomination of Justice Kennedy (and decision not to go with D.C. Circuit Court of Appeals Judge Laurence Silberman, an unequivocal conservative) was driven by the desire to avoid controversy after suffering the back-to-back debacles over his nomination of Judges Robert Bork and Douglas Ginsburg.

By way of contrast, incompetent staff vetting and horrible counsel from White House Chief of Staff John Sununu drove the disastrous nomination by former President Bush of the New Hampshire recluse, David Souter, by all accounts the worst Republican nomination since President Eisenhower gave Earl Warren and William Brennan keys to the court.

Jimmy Carter and Bill Clinton, by way of contrast, campaigned on strong pro-abortion platforms, spoke strongly against legislative and legal efforts to save prenatal infants, and Mr. Clinton twice vetoed Republican-enacted bills against "Partial Birth Abortion." Mr. Clinton displayed shrewd political judgment and exercised careful vetting to ensure that his two nominees, Ruth Bader Ginsburg and Stephen Breyer were solidly pro abortion, yet would not arouse controversy during their confirmation hearings. Both nominees sailed through confirmation, with Republicans foolishly doing nothing of consequence to block them.

Every Republican candidate for president since Barry Goldwater in 1964 has spoken against abortion. Every Democrat presidential candidate after John F. Kennedy spoke in support of abortion.

The only justices on the Supreme Court (since Democrats initiated the Roe litigation in 1972) to hold the Constitution does not countenance a "right" of abortion are Justices Byron White, William Rehnquist, Burger (who changed his earlier opinion) Antonin Scalia, and Clarence Thomas -- a conservative Catholic Democrat and four Republicans. Justice Hugo Black, a Roosevelt Democrat who strongly opposed the court's first effort (Griswold v. Connecticut) to misread a right of privacy into the Constitution, died three months before Roe was first argued. Black almost certainly would have voted against it, and his position might well have altered the outcome since Justice Stewart had joined Black in dissent in Griswold (as he often did throughout his tenure on the court.)

Yet, without Justice Black's intellectual support and reassured by the intellectual poseur, Justice Blackmun (seldom right; never in doubt), Justice Stewart switched his position to support a "right of privacy" in Roe. Chief Justice Burger wavered badly, but ultimately voted with the majority in Roe, a vote he later publicly regretted and changed on Roe's progeny.

In effect, had Black lived another year, it is plausible he would have swayed Justice Stewart, making 4 votes against Roe. That, in turn, may well have caused Burger to switch his vote, so the decision would have been 5-to-4 against abortion as a privacy right, with Burger writing the decision. So it goes.

Senate Democrats, beginning with the Bork nomination by President Reagan, have made a mockery out of all judicial confirmations in order to barricade the federal courts at all three levels against any pro-life jurisprudence. The abortion lobby, almost wholly Democrat and a principal fund-raiser for the Democrat Party, is the single most powerful cause of that unfortunate situation.

Thus, Republicans have consistently opposed abortion, while Democrats have consistently supported it. But for atypical incompetence on matters judicial on the part of Eisenhower, Nixon, Ford, Reagan, and George Bush the elder, and atypical skill on the part of Mr. Clinton, and the untimely death of Justice Black, the Constitution would probably not have been and certainly would not still remain grotesquely twisted to be so misread that killing a child is "a fundamental right."

TIMOTHY L. HARKER

Editor, AmicusRepublicae.com

Potomac, Md.