Friday, July 22, 2005

edited by Victor Cuvo

Police and emergency services outside Shepherd's Bush tube station following reports of explosions at three tube stations and a bus. Photograph: Andrew Stuart/AP Panic as London is hit again


All eyes are on nominee
All eyes are on nominee
Senator Arlen Specter (L), Senator Bill Frist, court nominee John G. Roberts Jr., and Senator Mitch McConnell met Wednesday on Capitol Hill. (Getty Images Photo)

column by Ann Coulter,


I think she raises some points worth pondering in her column, but ultimately I disagree with her.

She wants a justice who will vote to overturn Roe. So do I. She dislikes the stealth-nominee strategy. So do I. She thinks that it is possible that he could end up compiling a record like the one Souter has. And it is possible; those of us who defend him now may end up having reasons for regret.

But while it is possible that a nominee who openly pledged that he would vote to overturn Roe could get confirmed, it is not at all obvious. There are at least 50 senators who support Roe. A definitely-anti-Roe nominee might be able to win some votes from pro-Roe senators, but no Republican nominee is guaranteed the votes of every anti-Roe senator. (Reid and Pryor might find ways to vote with their caucus.) So it may be necessary to nominate someone who is not 100 percent certain to vote against Roe.

There aren't many possible nominees who would provide that certainty. Michael McConnell has, for example, strongly criticized Roe. But he has never, to my knowledge, said that it should be overturned; it's possible that as a justice he would consider himself obligated to re-affirm the precedent. And again, going any further would at least imperil confirmation.

But the fact that someone isn't certain to vote a particular way does not mean that we can't make inferences. The pro-choicers are, I think, correct to suggest that Roberts's participation in the Rust v. Sullivan brief raises the likelihood that he would vote to overturn Roe. It's not dispositive, but it does establish that he's not so favorable to abortion rights that he felt it necessary to resign or refuse as a matter of conscience to participate in the case. The fact that Roberts's wife is pro-life isn't dispositive, either, but obviously it raises the likelihood, too.

In the cases of O'Connor, Kennedy, and Souter, we didn't have these pro-life clues, and indeed in some cases we had some clues that went the other way--strong ones in the case of O'Connor.

So I think Roberts is likely to make the right decision on abortion, and that is among my reasons for supporting him. But the fact that none of us can be certain is one of the things that may get him confirmed. I certainly hope that pro-lifers (and conservatives generally--as I've argued before, I think that Roe is a useful albeit imperfect index for the other views we should want in a judge) don't get taken again, but I think there's a case for hopefulness.