The Fight Behind the Fight

By Terry M. Neal
washingtonpost.com Staff Writer
Monday, August 1, 2005 8:30 AM

The fight over John Roberts's nomination to the Supreme Court isn't only about abortion, but that's a big part of it.

Sure, there are other issues -- civil rights, gay rights, property rights and so on -- but abortion looms large over them all. Make no mistake -- abortion is one of the main things President Bush had in mind when he declared in announcing the nomination a couple weeks ago that Roberts will "strictly apply the Constitution and laws, not legislate from the bench." So whatever Roberts really thinks about abortion, many on the left are assuming he will work to overturn Roe v. Wade if he takes a seat on the high court.

And, since Senate Democrats are unlikely to get enough votes to sustain a filibuster, their assumptions likely won't preclude his confirmation.

The only real questions, then, are how much of a symbolic fight will Democrats put up and how will the public perceive that fight.

Much of this fight (whether a skirmish or a battle royale remains to be seen) will be over rhetoric. There was an interesting exchange that underscored this point on NBC's "Meet the Press" last Sunday.

Speaking with panelist William Safire, the conservative former New York Times columnist, moderator Tim Russert said: "President Bill Clinton was very clear as a candidate, Bill Safire, that he would only appoint people to the court who would uphold Roe v. Wade. Why don't Republicans step forward and say, 'We're going to put people on the bench who are going to overturn Roe v. Wade?'"

Safire, who once worked as a speechwriter for President Nixon, answered succinctly: "Because that would be foolish politically, and I think there's a lot of practicality going on."

Indeed.

To understand the underlying politics, let's first take a look at the polls. Although politicians of all stripes love to proclaim that their commitment to principle supercedes the vagaries of polling, it's clear that public opinion plays a clear role in the political rhetoric from both sides.

According to a national nonpartisan Quinnipiac University poll taken July 21 to 25, 61 percent of those asked said Roberts should state his opinion on abortion compared with 32 percent who said he should not. And 57 percent said the Senate should consider "his views on controversial issues like abortion and the death penalty" versus 36 percent who said the Senate's only concern should be his judicial qualifications.

The Quinnipiac poll was also consistent with other polling over the years, showing that 65 percent of people agree with the 1973 Roe v. Wade Supreme Court decision, which established abortion as a right, compared with 30 percent who disagree.

Even as polls have showed that many, if not most, Americans support some restrictions on abortion, those same polls have suggested that most people solidly agree with the Roe reasoning. That reasoning concludes there is a right to privacy in the U.S. Constitution that protects a woman's right to choose abortion even if the Constitution doesn't specifically outline that right.

While the overturning of Roe v. Wade is the top priority issue for many social conservatives, they have found a way to pursue that agenda without wading directly into that political minefield. In terms of judicial nominations, the rhetoric has morphed into a debate over "strict constructionism" or, as conservatives phrase it, whether judges should "legislate from the bench." In this case, should the court rule by reading into the Constitution rights that are not explicitly stated?

Bush recognized early on how fraught with political peril the abortion issue was. Since he began running for president the first time in mid-1999, Bush has been exceedingly careful in talking about abortion. He has never made it a front-burner issue, at least in terms of publicly laying out his policy agenda.

He has made it clear that he opposes abortion, but he's tried to choose his words carefully, particularly when talking about it in relation to judicial nominations. From the beginning of his first presidential campaign, he insisted that he would not have a litmus test on abortion and that he would look for judges that were "strict constructionist" or would "strictly apply" the Constitution.

One of the few times I've seen Bush flustered was back in early 2000, when he was still in a crowded field of candidates running for president. Back then, I was with The Washington Post and part of the press core covering his nascent campaign. At the time, Bush was being challenged from the right by Steve Forbes and Gary Bauer, who were pressing the Texas governor to state unequivocally whether he would only nominate antiabortion judges to the court.

Bush kept saying he would have no "litmus test" on abortion and would seek to nominate "strict constructionist" judges.

The reporters covering Bush decided to press him on this issue at a news conference in Pella, Iowa, on Jan. 20, 2000. The questions came in rapid-fire fashion: When asked to define the term "strict constructionist," Bush replied that it was someone who "interprets the Constitution for what it is and doesn't use the opportunity of the Constitution to pass legislation or legislate from the bench."

Bush and his advisers would have loved to leave it right there. Who could disagree with that? The problem, of course, is that "strict constructionism," like beauty, is in the eye of the beholder.

Asked at the same conference to specify some major cases in which the Supreme Court had deviated from a "strict constructionist" standard, Bush said he could not do so because he was not a lawyer.

Typically, in those news conferences, reporters jumped from one topic to the next with little follow up on specific questions. But on this day, reporters stayed on this subject. Just what did the candidate mean by "strict constructionist?" Bush's face turned red and he gripped the sides of his lectern, clearly angry and nervous.

Finally, when asked what a strict constructionist judge would be forced to conclude about the legality of abortion, he allowed: "Roe v. Wade was a reach that overstepped the constitutional bounds as far as I'm concerned."

This was an important, if little chronicled, moment in Bush's political history, in that it was one of the few times he has ever been pressed by reporters to define the term and apply the principle to specific case law. In this case, a strict constructionist judge is one who would not make the leap, as the justices did in the Roe case, that the Constitution guaranteed a right to privacy that could be applied to abortion. In other words, Bush's judges would believe, as he did, that Roe was wrongly decided.

Bush's subtlety didn't satisfy Forbes, who lambasted Bush's response afterward, saying: "It's just ridiculous that he's not willing to take a firm stand on the life issue. On the life issue, he's becoming a pacifist, not an activist."

But Bush knew exactly what he was doing, and his approach says much about why he became the nominee and not Forbes or Bauer. The right was eager for a candidate that shared its values, but could also appeal to moderates. After the Bob Dole disaster of 1996, and two terms of Bill Clinton, the right wanted a winner. Bush became a consensus candidate in part because conservatives understood what he was saying when he used the term "strict constructionist"--even if much of the rest of the public did not.

This is not to suggest in any way that Bush's nomination and eventual election was primarily about abortion. It was not. But the issue, and his handling of it, played an important role.

"When he says strict constructionist, it's a code word," said Kim Gandy, president of the liberal National Organization for Women. "I don't think that there are many layers of complication there. He has been very straightforward I think in saying to his supporters that he wants Roe v. Wade overturned. He says he doesn't have a litmus test, but it's very clear that he does have a litmus test. Out of some 200 judges he's appointed to the bench, they've all opposed choice. As far as I know, not one is pro-choice."

Gandy argues that not just abortion but a whole range of issues -- from Title IX, to affirmative action, to property rights, to birth control, to the Americans with Disabilities Act -- is at stake based on whether Bush's nominee considers himself a strict constructionist by Bush's standard. And because many key issues were decided on a 5 to 4 basis, with the departing Sandra Day O'Connor often the swing vote, much is at stake if Roberts's confirmation changes the ideological bent of the court.

Most people, however, agree abortion won't be one of the key issues. The court is solidly 6 to 3 in favor of Roe v. Wade; at most, Roberts's confirmation could make it 5 to 4. Even if the Supreme Court overturns Roe, it doesn't make abortion illegal; it would merely allow each state to make its own laws regarding abortion.

But the larger point, conservatives argue, is their philosophy that judicial qualifications and temperament and approach to the law are the valid areas of concern, not specific issues.

Conservatives lambasted Sen. Patrick Leahy (Vt.), the ranking Democrat on the Judiciary Committee, for suggesting that he might vote against Roberts if he doesn't answer specific questions about abortion.

"Just as you would not have a justice nominee who said, 'Well I wouldn't consider Brown v. Board of Education settled law,' I don't see how they could get confirmed," Leahy said in an interview on Vermont Public Radio last week. "I don't see how somebody who said that they didn't consider Roe v. Wade settled law ... I don't see how they get confirmed.''

Wendy E. Long, legal counsel for the conservative Judicial Confirmation Network, responded by putting out the following statement: "These litmus tests for Justices are completely improper. They undermine the independence of the Supreme Court, and most Americans find this playing politics with the Supreme Court repugnant. It just goes to show how out of touch these Senators are with mainstream America."

In a phone interview, Long acknowledged that when Republicans had tried to coax Ruth Bader Ginsburg to detail her personal opinion on specific issues, she assiduously refused to answer questions that could prejudge any case she might have to decide on the court. And that was the right thing to do, Long said, even though most conservatives personally dislike her and consider her to be too liberal on the court. Long said what angers her about Leahy isn't so much his intention to ask Roberts specific questions, but his assertion that he might vote against him if he doesn't like his answers.

Long says she doesn't particularly like the term "strict constructionist," but "I know what [the president] means when he uses it. He has at times used other terms that are more helpful." But what he means is "the judge will apply the laws as written and not make them up."

Asked whether this sort of judge would view Roe as inappropriately decided, she argues that abortion on demand is not in the Constitution.

"I'm in very good company even among liberal constitutional scholars and commentators," she said. "It is among serious scholars -- legal and constitutional scholars -- widely agreed to be a very poor constitutional decision."

She is quick to add: "I don't know what Judge Roberts believes. That's what people on the other side don't understand. We are not looking for particular outcomes in particular cases. We are looking for someone who has an approach and methodology of being faithful to the Constitution."

In other words, strict constructionism is not about abortion. But it kinda is.

At Roberts's confirmation hearings for the U.S. Court of Appeals, he called the 1973 Roe decision "settled." At the time, he was asked by Sen. Richard J. Durbin (D-Ill.) his position on Roe.

"... Roe v. Wade is the settled law of the land. It is not -- it's a little more than settled," Roberts responded. "It was reaffirmed in the face of a challenge that it should be overruled in the [Planned Parenthood of Southeastern Pa. v. Casey] decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."

But the Supreme Court is quite different from an appellate court nomination -- something even the White House acknowledges. In an interview last week with the Associated Press, Attorney General Alberto Gonzales said a Supreme Court justice does not have to follow a previous ruling "if you believe it's wrong."

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales told the AP. "If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

Democratic senators are pressing the current Bush administration for access to more records from this time period.

Memos already released from his time as associate counsel to the Reagan White House reveal his views on affirmative action, integration, judicial restraint, separation of church and state and other issues. But no word on abortion.

Comments can be sent to Terry Neal at commentsforneal@washingtonpost.com.

Staff writer Mary Specht contributed to this report.

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