'Settled Law' Versus 'Unsettling Lawyers': The Dark Side of Republicans in Robes

The impression among most fair-minded people is that generally the Republican Party is "Pro-Life" (that is, opposes abortion on demand), while the Democrat Party is "Pro-Choice" (favors abortion on demand). That black-and-white snapshot has been enhanced by all presidential elections since 1980, when Ronald Reagan transformed modern American politics. In every one of the seven most recent national White House referenda, each party’s nominee was reasonably clear on his side of the abortion issue.

Yet, a fresh poll conducted by CBS News July 13-14 (with a plus-or-minus error margin of 4%) reveals an odd result, when registered voters were asked, "More than 30 years ago, the Supreme Court’s decision in Roe v. Wade established a constitutional right for women to obtain legal abortions in this country. In general, do you think the court’s decision was a good thing or a bad thing?"

Republicans split exactly down the middle (47% think the abortion ruling is "a good thing," and 47% "a bad thing").

Democrats, on the other hand, think Roe v. Wade is far more "a good thing" (68%) than "a bad thing" (24%).

One opinion poll, of course, means very little, either statistically or politically. Pro-lifers (of whom I am proudly one) can point to other samplings, and elections, which indicate a notable Republican (or pro-Republican) majority in opposition to abortion on demand. On the other hand, Republican acts speak much louder than Republican words–and that is where the dark side of Republicanism emerges. Consider these acts (and facts):

•Seven of the nine current Supreme Court justices were appointed by Republican presidents, and three of the black-robed, non-litmus-tested, GOP-appointed judges (including Sandra Day "Just Call Me Ms. Weathervane" O’Connor) in 2000 jumped the invisible partisan fence to join two Democrat-appointed judges in order to overturn Nebraska’s ban on horrific "partial birth" abortions (i.e., plunging a pair of scissors into the back of a baby’s skull).

•The majority opinion in Roe was written by Republican President Richard Nixon’s appointee Harry Blackmun (ironically, the dissenting opinion was written by Democrat President John Kennedy’s appointee Byron White).

•A string of recent Republican federal-bench hopefuls have become squidlike before hostile Democrats on the Senate Judiciary Committee (the only kind of Democrats getting elected recently), inking the waters into opacity with weasel words in a vain attempt to downplay their true, or presumed, feelings on abortion.

The worst of this Republican lot on abortion may be Miguel Estrada, who failed in his attempt to reach the nation’s second highest court (the Federal Court of Appeals for Washington, D.C.). Like so many Republican wannabe jurists, Estrada was put forth by the White House as an abortion foe, but when crunch time came, he meekly whispered, "I believe so," when asked by Democrat senatorial tigress Diane Feinstein of the Judiciary Committee whether he saw Roe as "settled law."

(Estrada, it also should be remembered, was a government lawyer who worked in Democrat Janet Reno’s bizarre Justice Department and enthusiastically filed a legal brief supporting the ultraliberal National Organization for Women. He claimed that anti-Mafia laws, designed by Congress to crush organized-crime mobsters, could be used to hound peaceful abortion-clinic protesters.)

"Settled law," of course, is a legitimate concept, an English version for the Latin stare decisis ("to stand by things decided"), a rule of adherence to judicial precedent in the absence of an urgent reason to reexamine it. When used by allegedly conservative Republicans to placate blatantly liberal Democrats on abortion, however, the notion of "settled law" becomes a coded phrase for, "Please ignore my bark. I shall not bite."

Republicans who stoop to be conquered by the settled-law ploy may be right in a strictly legal sense, that is, that lower-court judges must follow the Supreme Court’s lead. That nicety aside, GOP hopefuls ought to feel obligated, nevertheless, to remind liberal inquisitors (either in the Senate or news media) that Roe v. Wade:

1) was based on a lie (claimant Norma McCovery, a.k.a. Roe, subsequently refuted the falsehood by her lawyers, that she had been impregnated by a rapist),

2) was an unconstitutional decision based on an imaginary and misnamed "right" ("privacy," which is not mentioned in our basic founding document),

3) was an unconstitutional act of judicial lawmaking that overrides state legislatures’ rights, and

4) that "settled law" does not mean "inviolable law set in granite" (like the now verboten 10 Commandments), but can be overturned by the Supreme Court at any time and for any good reason–of which there are many.

Instead of seeing such profiles in courage, Americans must witness a string of big-name Republican lawyers who sheepishly jump through the linguistic hoops of a craven political enemy. Judge Michael McConnell, who sits on the 10th Circuit Court of Appeals, also muttered the two-word curse, "settled law," in order to secure senators’ approval at his 2002 hearings. Ditto (for no good reason) Ken Starr, the former judge and U.S. solicitor general. Starr recently declared on a national radio interview that not only is Roe "settled law," but that nothing short of a draconian Constitutional Amendment could reverse it (as if the real possibity of three solid pro-life appointments by President Bush would not be a quicker and neater solution).

Then there is puzzling Judge John Roberts, Mr. Bush’s first nominee for the Supreme Court, whose sphinxlike pronouncements have managed to confuse pro-lifers and abortionphiles alike. The former were elated and the latter were outraged when Harvard-trained Mr. Roberts wrote while serving as a lawyer for George Bush I, "We continue to believe that Roe was wrongly decided and should be overruled." Later, in 2003, during his Senate hearing for an appellate judgeship, suave Mr. Roberts oozed: "Roe versus Wade is the settled law of the land . . . There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent." Suddenly, the air vanished from pro-lifers’ sails and promptly revived the pro-abortionites.

To compound his inscrutability, Roberts then humbly submitted to senators a list of 146 members of the nation’s most liberal lawyers’ club, the District of Columbia Bar, including former officials of the Clinton Administration. All 146 gushingly endorsed Roberts’ appellate candidacy and, presumably, his commitment to "settled law." (Have you noticed that the same liberals who worship "settled law" in order to defend the immutability of Roe also sing hymns to the amorphous god of "a living and breathing Constitution" that enables them to find privacy-protected murder, gay marriage and other evil "rights" that the founding fathers never, even in a triple lifetime, would have envisioned?)

So here are two words for George Bush II, the next time there’s a big opening at SCOTUS: Litmus test.