Ellington

Has Bush nominated an anti-Roe stealth candidate? Not if he's smart. Wait, let me rephrase that...

The blogs are buzzing: Pro-lifers are upset about word from Sen. Arlen Specter that Miers supports the majority ruling in Griswold v. Connecticut (1965), which struck down a law banning contraception--yes, contraception--and in doing so established the right to privacy that would later form the basis of Roe v. Wade. Meanwhile, pro-choicers are upset about a 1989 survey she filled out stating support for a constitutional amendment banning abortion.

So where does she stand on all of this? It's not really clear. Support for Griswold does not mean support for Roe, and a one-word answer to a 16-year-old political survey hardly determines how she would vote were she a member of the Court today.

And even if Roberts and Miers both turn out to be fire-breathing Scalia clones, we would still probably see Roe upheld by a 5-4 majority--Stevens, Kennedy, Souter, Ginsburg, and Breyer holding a majority over Roberts, Scalia, Thomas, and Miers. The only potential swing vote I see is Kennedy, but he had the chance to overturn Roe over a decade ago and didn't take it. I don't see why he would be any more likely to switch sides now, particularly given his track record as a moderate justice since that time.

In any event, the "if" designating Roberts and Miers anti-Roe is a mighty big "if" from where I'm standing. As I discussed in my first blog entry, Bush has very little to gain if legal abortion is overturned on his watch. Let's imagine a scenario where Roberts and Miers are appointed and overturn Roe in, say, 2007. Well, that would...

1. Split the Republican Party into pro-life (Bush, McCain, Santorum, et. al.) and pro-choice (Giuliani, Schwarzenegger, Romney, et. al.) factions. Pro-choice Republicans will have to condemn the ruling, and with it Bush's judgment, in order to hold on to their support; but most Republicans would not want to wash their hands of their own party's successes, which means that the decision would...

2. Put the Democratic Party back in power. Voting for a pro-life candidate isn't a big deal until it actually becomes possible to ban abortion; at that point, I suspect the pro-life position will be a dealbreaker for many Americans who will want to see Roe reinstated, particularly when they're confronted with other possible implications of overturning the right to privacy (do we really want to live in a country where states can ban contraception if their legislatures are so inclined?). Republicans can finally claim to control the executive branch and both houses of Congress---something that has not happened since the Eisenhower era. As AlterNet's Joshua Holland argues:

"Where would the GOP be without the specter of godless, baby-killing liberals keeping its base awake at night? Gone would be the their most potent organizing issue, the source of their passion advantage. Gone too would be the apathy of those on the left and center-left -- poof! It would be the end of their suburban 'security moms.' Young women would begin to realize that maybe, just maybe, thinking of oneself as a feminist isn't the worst thing in the world."

And besides, any Supreme Court ruling overturning Roe would...

3. Only permit a temporary, regional moratorium. Prohibition was only enacted once, which required overwhelming legislative support; and then it was struck down with equally overwhelming legislative support. Roe would be just as easy to reinstate as it would be to repeal; one or two more Supreme Court retirements would be enough. Pro-life strategists are wise to focus their energies to building popular support for a constitutional ban on abortion; there are no shortcuts. This is a democracy, and a long-term ban on abortion can only be sustained by overwhelming popular support.

I think Bush knows all of this, and has no intention of working to overturn Roe. So why does he keep bringing out stealth nominees? Holland has an idea:

"Despite having a flimsy record on those hot-button social issues, Miers -- along with new Chief Justice John Roberts -- are what business writer Lorraine Woellert described as 'legal wonks who have packed a powerful punch in the corporate world,' and who now stand poised to be part of a 'CEO's dream team' . . . [Y]ears from now the progressive movement will find itself sitting on the porch of its collective sharecropper's shack, reproductive rights as strong -- or as flimsy -- as they are today and wonder how it got so thoroughly railroaded. How did it become such a single-minded group of inverse 'values voters' that it would sink all that time, energy and money into the battle over Roe and plum forget to find out how Miers might rule on the big questions of corporate rights and responsibilities, as well as on labor issues, the separation of powers, consumer rights, the environment and all the rest."