The Supreme Court
Harriet Sargent Wiswell and George C. Wiswell Jr. Associate Professor of American Constitutional Law
"I think one of the clearest differences between the two candidates would relate to the courts, which is obviously close to my study. Now, here it is clear that they would want to appoint very different sorts of people. President Bush, in the lead up to the 2000 election, let it be known that [U.S. Supreme Court] Justice [Antonin] Scalia is the model of an excellent justice. And many of the lower-court appointments have actually borne out this idea, that he's wanted to appoint more historically and more textually oriented judges whose view is that the meaning of the Constitution is relatively fixed, because the Constitution's authority is derived from the fact that is was ratified by the people at a certain point in time, and if the Constitution is to be changed, the people should change it through the amendment process.
Their view of the judicial role is that they should enforce what the Constitution requires through the judicial process, leaving the people free, through the electoral branches, to adapt to the changing times, enacting new laws as appropriate.
Justice Scalia, at any rate, has voted against abortion rights, has suggested that Roe v. Wade should be overturned. He voted against the Lawrence decision [which struck down anti-sodomy laws in Texas], which expanded federal gay rights. He's got a strong notion of separation of powers and obviously voted for the issues that the president is for. The lower-court appointees for the most part have been in substantial conformity to that approach.
It is clear, I think, that a President Kerry would appoint a very different set of people. Kerry, like President Clinton, would appoint staunch backers of the abortion rights, justices who are more committed to the Constitution as it represents a kind of evolving commitment to what they regard as basic principles of justice.
Now the question is the role of the Senate, because over the last 20, 30 years, the Senate has become much more willing to reject nominees to the courts. And clearly if Bush were to appoint some outspoken conservative scholar who is on record for wanting to overturn Roe v. Wade, as long as there are at least 40 Democrats in the Senate, this will not be confirmed.
It is less clear how far the Republicans would go to block Supreme Court nominees on the other side. Justice Ruth [Bader] Ginsburg is actually famous for an argument published when she was a law professor that abortion rights were best justified, not by reference to the due process clause in the 14th Amendment that says states can't deprive you of life, liberty, or property without following due process of law, but by arguing that actually abortion rights are an equality issue, a protection issue. It's about women having to be able to get abortions in order to take an equal place in society with men; otherwise women would always be hampered in their quest for social equality by not having full control over their reproduction. And the Senate did not strike her down and was pretty deferential.
So one wonders if push came to shove, which way would the moderate Republicans go? Would they really fight to block nominees like Justice Ginsburg? And they didn't in the Clinton administration. And Justice [Stephen] Breyer, in 1994, went through pretty easily.
But sooner or later a president ought to be getting a number of appointee appointments to the court. Three or four is what they said up to the 2000 election. You know, life expectancy is longer and you can't really retire the year before an election. It just is sort of not done. And if you are hoping that the president of the other party wins, you shouldn't retire. If you want the president to appoint someone like you, he is probably not going to be able to do it during an election.
Assume,and it strikes me as highly unlikely,that three Bush appointees are added to Thomas and Scalia. Assume they stay on; that gets you five votes to overturn Roe v. Wade. All that does is return the issue of abortion to the states, whereupon most of the states, places like California, New York, then proceed to enact pro-abortion laws, and places like Louisiana, Pennsylvania and other conservative states are going to enact more restrictive abortion laws. And that will impose some burdens on women seeking abortions. Or, to put it another way, will presumably save the lives of some unborn children who might be killed. But what the people ultimately want through their elected representatives they would be able to get.
The majorities in every state who wanted abortion to be highly regulated,they would get it. If they wanted it to be relatively unregulated,that is what they would get. So there is an argument that has been made that suggests that this would be a good thing for the electorate to make these decisions rather than the court."