The following article appeared, in slightly different form, in Human Life Review, Fall 2005. Copyright © 2005 by Mary Meehan

Tiptoeing Around Roe

Mary Meehan

Asked about Roe v. Wade during her 1981 Supreme Court confirmation hearings, Judge Sandra Day O'Connor said it would be "improper for me to endorse or criticize that decision" since it might well "come back before the Court in one form or another." Things had not changed much by 2005, when Judge John Roberts was pressed on Roe during his confirmation hearings for Chief Justice. Roberts said he "should stay away from discussions of particular issues that are likely to come before the court again."⁽¹⁾ Of the nine justices added to the Court since the 1973 Roe decision, most declined to discuss Roe in their confirmation hearings.⁽²⁾

Yet this was a prudential or political decision on their part. Nominees are free to discuss their views on Roe and other decisions, provided they make it clear that they are open to persuasion on the issues involved. What nominees cannot do is promise to vote a certain way on any issue. As now-Chief Justice Roberts rightly said, confirmation is "not supposed to be a bargaining process."⁽³⁾ And the parties to any Supreme Court case are entitled to have justices who will study the facts and the law before reaching a decision. But as two legal scholars recently wrote, the parties are not "entitled to judges who have no views of the law. An open mind is one thing; an empty head is another."⁽⁴⁾

Why Not Shock the Senators?

Imagine for a moment a nominee who is interrogated about Roe and who makes the standard declaration about not deciding any case in advance, but then goes on to say: "I must add, Senator, that there has been overwhelming criticism of Roe by legal scholars. Some like its policy result, but say there's no constitutional basis for it. Others believe there is a basis, but that the Court failed to state it. Some say Roe's history of abortion law is inaccurate. And some claim the courts--by failing to have a guardian argue for the unborn and by ignoring scientific evidence about the unborn--decided the case without considering the interests of a major party. These are serious objections which, if briefed in a case before the Court, would have to be considered."

Such an answer would stun the Democratic side of the Senate Judiciary Committee. Massachusetts Senator Edward Kennedy's formidable jaw would drop in amazement. Senator Patrick Leahy of Vermont would stare in disbelief. Senator Dianne Feinstein of California would be frozen in horror. Senators Joseph Biden of Delaware and Charles Schumer of New York might be speechless for the first time in their lives. But the Fearsome Five would quickly recover and start pelting the nominee with questions. An early one would be, "Aren't you really admitting that you would vote to overturn Roe?"

"No, Senator. I'm just saying these things would have to be considered if briefed. And if I were presented with such a case, I would study carefully the briefs of both sides, ask questions at oral argument, and confer at length with my colleagues on the Court. I'd try to reach the best possible decision--based on the facts, the law, and the Constitution."

How could anyone object to such an approach? The Fearsome Five would find a way; yet they would find it hard to bluster through the key point about scholarly criticism of Roe. Senator Biden himself, during Justice Antonin Scalia's 1986 confirmation hearings, acknowledged "overwhelming universal criticism...that Roe v. Wade was not a very well reasoned decision." Biden added: "Most constitutional scholars do not offer that as an example, whether they are for or against abortion, of a decision that is well written and well reasoned."⁽⁵⁾ By the time of the Scalia hearings, Justice Harry Blackmun's Roe v.Wade opinion was a major embarrassment to many who liked its policy result. Its critics, then or later, included legal scholars such as Robert Bork, Archibald Cox, John Hart Ely, Charles Fried, Judge Henry Friendly, Gerald Gunther, John Noonan, and William Van Alstyne. The common criticism was that Blackmun had failed to show a constitutional basis for Roe.⁽⁶⁾ Noonan and other law professors of a right-to-life persuasion, such as Robert Byrn...Charles Rice, Lynn Wardle, and Joseph Witherspoon, went well beyond that point and challenged Blackmun on his history of abortion law and virtually every other aspect of the Roe opinion.⁽⁷⁾

Why So Much Timidity?

So why haven't any Supreme Court nominees been willing to take on Roe in their confirmation hearings? Well, Robert Bork did, and he was the only Supreme Court nominee since Roe who failed to win confirmation by the Senate. I would argue that many Republicans and abortion foes have been overly-traumatized by the role abortion played in Bork's defeat. Actually, his outspoken criticism of Griswold v. Connecticut, a 1965 case that struck down a contraceptive ban on grounds of a claimed privacy right, may have hurt Bork more than anything else.⁽⁸⁾ Roe leans partly on Griswold for its privacy claim, but it's possible to oppose Roe without taking on Griswold. Bork was brave and intellectually honest in taking on both at the same time, but it cost him dearly. He had other baggage as well. As a legal scholar, he had taken controversial positions on civil rights and the First Amendment--positions that worried many moderates as well as liberals. As Solicitor General of the United States in the Nixon Administration, he had played a difficult and honorable role during the Watergate scandal--but one that was a disaster from a public-relations standpoint. Bork's enemies could and did exploit this during his Supreme Court confirmation hearings. They also distorted his decisions as an appeals court judge.⁽⁹⁾

The Bork defeat led to what many call a Republican "stealth strategy": the selection of Supreme Court nominees who have little or no paper trail on abortion and other controversial issues, or are prepared to downplay whatever problematic paper trail they may have. The four Republican nominees confirmed since the Bork fight--Anthony Kennedy, David Souter, Clarence Thomas, and John Roberts-did not mention the scholarly criticism of Roe; instead, they shied away from abortion as much as possible. All said they believe the Constitution guarantees a right of privacy. Yet, while several specific rights related to privacy are guaranteed in the Constitution--for example, the Fourth Amendment's ban on "unreasonable searches and seizures"--there's no general right of privacy there. Bork stresses a key question: "Privacy to do what?" He adds, "People often take addictive drugs in private, some men physically abuse their wives and children in private, executives conspire to fix prices in private, Mafiosi confer with their button men [hit men] in private."⁽¹⁰⁾ Even Senator Leahy once said the Constitution "does not speak of a right to privacy."⁽¹¹⁾

After Bork's defeat, Republican White House handlers urged Supreme Court nominees to be cautious and bland. As Justice Clarence Thomas said after his 1991 confirmation ordeal, "There is an inherent dishonesty in the system. It says, don't be yourself. If you are yourself, like Bob Bork was, you're dead."⁽¹²⁾ In the first part of his confirmation hearings, a Thomas biographer observes, many of Judge Thomas's answers "were as frustrating to his supporters as they were to his critics. He seemed too cautious, too programmed. Where was the feisty Clarence Thomas, the independent thinker who reveled in the give-and-take of intellectual debate?" The biographer quoted Clint Bolick, a former Thomas staff member, who said his old boss "had been totally coached out of saying anything he thought."⁽¹³⁾

White House handlers, then and now, could respond to such criticism by saying, "Well, we got him through, didn't we?"

Yes, but there was a price to be paid. Thomas was seriously harmed by the defensive and evasive stance he took in the early phase of his confirmation hearings. His coaches would have done far better to urge him to challenge the bullying tactics used by several senators on Roe and other issues. When he finally criticized senators, on his own initiative during the Anita Hill phase of the hearings, he was extremely effective.⁽¹⁴⁾

Nominees are not the only ones who have tiptoed around Roe v. Wade. Most Republican senators on the Judiciary Committee have done the same. In the early years, this was partly because so many committee Republicans were abortion supporters who were silent for tactical reasons. Today Senator Arlen Specter of Pennsylvania is the only Roe supporter left on the Republican side; but he's now the committee chairman--and a reliable questioner for the abortion forces. Some anti-abortion Republican senators probably have been silent on Roe in keeping with White House stealth strategy--or a stealth strategy designed for their own political careers. A few ardent pro-life senators, though, have addressed Roe in confirmation hearings.

There was improvement on the Republican side of the committee during the John Roberts hearings, but more is needed. The result of tiptoeing is that the Democratic side--which once included the occasional right-to-lifer but is now totally supportive of abortion--has been far more aggressive in promoting Roe than anyone has been in questioning it. The Fearsome Five, who see themselves as champions of the women of America (ignoring the many millions of pro-life women), can be merciless in interrogating nominees on Roe. Actually, as some commentators noticed during the Roberts hearings, the Five are not so fearsome when faced with someone who really knows the Constitution. They are intimidating only when one allows them to be.

The High Cost of Tiptoeing Around

Confirmation hearings can and should be educational; at their best, they are first-rate constitutional seminars. Yet they also offer great opportunities for showboating, a temptation many senators cannot resist. Beyond that, they offer a chance to haze nominees in a certain direction, as cowboys haze (herd) their cattle: "Whoopee ti yi yo, git along little dogies."⁽¹⁵⁾ That's what Democrats try to do with their questions about Griswold and privacy and their anecdotes about hard cases and botched abortions in the era when abortion was illegal. Strong Democratic hazing may have helped influence Justices David Souter and Anthony Kennedy to reaffirm Roe in the 1992 Planned Parenthood v. Casey decision. But hazing may have backfired with Justice Clarence Thomas, whom the Democrats subjected to relentless grilling on abortion.

There are four major problems with the timidity of committee Republicans: 1) They miss an extremely important chance to educate the public--and the media--about the constitutional wrongs of Roe; this failure undermines the substantial educational efforts of pro-life groups. 2) They often give the impression that they are afraid of Roe and that they agree with their Democratic colleagues that the women of America dearly love Roe and will end the political career of anyone who dares to oppose it. 3) They allow the Democrats to do most of the hazing on Roe so that nominees--at least subconsciously--may be afraid to overturn it. 4) They leave an impression of lack of candor that harms the pro-life cause and adds to the general rancor of abortion debates.

Roe cannot be overturned in the dead of night, nor in the arbitrary and unreasoned way in which it was written. If Republicans think that Chief Justice Roberts, for example, will write such a brilliant opinion overturning Roe that the opposition will be vanquished, they are sadly mistaken. He might vote to overrule Roe, and he might write a brilliant opinion, but no opinion can by itself win the country. There must be much educational preparation for overturn, and it must be done with both intelligence and courage. Above all, it must be done with integrity. Only then will the overturn have a better chance of public acceptance than Roe has had. And only then will there be a chance to secure the kind of protective legislation for the unborn that will be needed in every state if Roe goes down.

With a view toward these goals, I'd like to describe briefly each Supreme Court confirmation hearing since Roe and then suggest that more and better questions could have a deeper impact on reporters, the public, and possibly even the Court.

The Early Years:
Stevens, O'Connor, and Scalia

It seems incredible today, but the first Supreme Court nominee after Roe, appeals court Judge John Paul Stevens, was not even asked about Roe in his 1975 confirmation hearings. President Gerald Ford nominated Stevens to replace William O. Douglas, a key Roe supporter. The senators should have been curious about what Judge Stevens thought of Roe; but if so, they kept their curiosity to themselves. Abortion foes among them may have been encouraged by a 1973 Stevens ruling that a hospital which was private, but had received federal money from the Hill-Burton and other programs, need not permit abortion on its premises.⁽¹⁶⁾ After Stevens sailed through his confirmation with a 98-0 Senate vote⁽¹⁷⁾ and joined the Court, he held a mixed position on public funding of abortion. But Stevens, now 85 and the senior associate justice, has been a firm supporter of Roe v. Wade.

Ronald Reagan campaigned in 1980 as a pro-life candidate, and the Republican platform that year pledged: "We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life."⁽¹⁸⁾ But during the 1980 campaign, Reagan also promised that "one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find."⁽¹⁹⁾ He had a chance to keep this promise just months after he took office, when Justice Potter Stewart, a Roe supporter, announced his retirement. But the pool of women from whom to choose was quite small; there were far fewer women lawyers than there are today, and women's share of federal judgeships was about six percent (whereas today it is 24 percent).⁽²⁰⁾ Reagan's staff found a woman, Judge Sandra Day O'Connor of the Arizona Court of Appeals, who was well-qualified professionally. But as a state senator in 1970, O'Connor had voted to legalize abortion in Arizona. After Roe, she had voted against a resolution that called for constitutional protection for the unborn.

Despite private and urgent warnings from pro-lifers, President Reagan and his staff were quick and careless in the decision to nominate O'Connor. Just after the decision was made, Kenneth W. Starr, then an aide to Reagan's Attorney General, submitted his hasty check of O'Connor's legislative background on abortion. Of the 1970 abortion legalization bill, Starr wrote: "There is no record of how Senator O'Connor voted, and she indicated that she has no recollection of how she voted." Yet an Arizona Republic news story showed that O'Connor had voted for the bill.⁽²¹⁾ Starr also claimed that O'Connor "knows well the Arizona leader of the right-to-life movement, a prominent female physician in Phoenix, and has never had any disputes or controversies with her." The physician in question, Dr. Carolyn Gerster, testified at O'Connor's confirmation hearings that the Justice Department had not verified that statement with her. Gerster said she had known O'Connor since 1972 and that they "were in an absolute adversary position" over abortion in 1973-74.⁽²²⁾

Pro-life senators on the Judiciary Committee were in a difficult position. Most were Republicans who didn't want to oppose a popular Republican president on his first Supreme Court nomination. And no one--Republican or Democrat--wanted to come out against the first woman ever nominated to the Supreme Court. A few pro-lifers, though, especially Senator Jeremiah Denton of Alabama and Senator John East of North Carolina, did engage in some hazing of O'Connor. They may have had some effect on her, although a wish to avoid embarrassing Reagan--at least while he was still in office--may have influenced her more. In her early years on the Court, O'Connor was critical of Roe v.Wade and even said it was "on a collision course with itself." She voted to allow abortion restrictions in several major cases; but in the 1992 Planned Parenthood v. Casey decision, she voted to affirm Roe's key holding of a right to abortion.⁽²³⁾

In her 1981 confirmation hearings, Judge O'Connor declined to give her views on Roe. Discussing any case that presented issues likely to return to the Court, she claimed, "would mean that I have prejudged the matter or have morally committed myself to a certain position"--and might even "make it necessary for me to disqualify myself on the matter."⁽²⁴⁾ Senators could have challenged her on this; after all, O'Connor could have made it clear she was open to persuasion and was not pledging her vote. Yet Judiciary Committee members usually accept, however reluctantly, such statements from Supreme Court nominees. But senators did question O'Connor about her legislative record and her personal views on abortion. She was willing to discuss both, although she said a decision shouldn't be based on a judge's personal views. She opposed abortion, she said, "as a matter of birth control or otherwise" and even referred to "my own abhorrence of abortion as a remedy." She also suggested that, after 1970, she wouldn't have voted for "a simple repealer" of the Arizona abortion law, and she stressed that in 1974 she had voted for a Medicaid bill that barred abortion funding in most cases.⁽²⁵⁾

Senator East quoted to her Justice White's dissent in Roe, which called that decision "an exercise of raw judicial power" and also quoted Justice William Rehnquist's dissent. He expressed frustration over O'Connor's refusal to discuss Roe and other cases that might return to the Court in different form. "...I query as one lowly freshman Senator," he remarked, "whether we are able really to get our teeth into anything."⁽²⁶⁾ Senator Denton shared East's frustration. He tried to get more information on O'Connor's policy views on abortion, but concluded that the effort was "fruitless." Perhaps he would have had more success had he been a lawyer instead of a retired admiral. On the other hand, it's hard to argue with someone who has paid his dues as Denton had. A prisoner of war in North Vietnam for several years, he had suffered greatly from torture there. He may have had some impact on O'Connor when he mentioned his "cultural shock" upon returning to America and finding that abortion was both legal and "just an accepted thing."⁽²⁷⁾

The Senate confirmed O'Connor by a vote of 99-0. Abortion foes were surprised and pleased by her early votes to allow restrictions on abortion, but later dismayed by her decision to reaffirm Roe, and appalled by her 2000 vote to strike down a state ban on partial-birth abortion.⁽²⁸⁾

In 1986 President Reagan had another Court vacancy to fill when Chief Justice Warren Burger announced his retirement. Initially a Roe supporter, Burger had joined the opposition by the time he retired.⁽²⁹⁾ Reagan decided to move Justice Rehnquist up to Chief Justice and to fill the associate-justice slot with a conservative appeals court judge, Antonin Scalia. Reagan's popularity was still high; the Republicans still controlled the Senate; Scalia's professional background was impressive; and he was the first Italian American nominated to the Supreme Court. So liberals did not mount a major campaign to defeat him. They did, however, campaign against Rehnquist's elevation to Chief Justice; they couldn't prevent his confirmation, but did achieve 33 votes against him. Although he was a dissenter in Roe, he wasn't even asked about it at his confirmation hearings. Most of the overt attacks against him were based on ethics-related allegations, but liberals were deeply worried that he and Scalia would move the Court significantly to the right.⁽³⁰⁾

During a debate in 1978, Scalia had said of abortion and other issues "on which there is no societal agreement" that the "courts have no business being there."⁽³¹⁾ At his confirmation hearings, Senator Kennedy bluntly asked him whether he expected to overturn Roe. Scalia said it would be "improper" for him to answer and added that "I have no agenda" and that "nobody arguing that case before me should think that he is arguing to somebody who has his mind made up either way."⁽³²⁾ Senator Biden tried to reach the same issue, at least indirectly, by asking whether a right to privacy is implicit in the Ninth Amendment. But Judge Scalia wasn't about to fall into that trap. "I think that's in effect asking me to rule on cases," he replied. He also noted that there "have been scholarly criticisms of the whole notion of right to privacy."⁽³³⁾ Scalia emerged unscathed from his confirmation hearing and was confirmed by a 98-0 vote.⁽³⁴⁾ To no one's great surprise, he turned out to be a solid vote against Roe. He contended that the Court had brought great trouble upon itself by intruding in an area where it didn't belong.

Roller-Coaster Time: Bork and Kennedy

When Justice Lewis Powell, another Roe supporter, announced his retirement in 1987, President Reagan named appeals court Judge Robert Bork to take his place. Conservatives were delighted by the nomination of a brilliant legal scholar who demanded strict adherence to the Constitution. They didn't realize at first that Bork's long paper trail could be his undoing. Nor did they realize how difficult the Democrats' control of the Senate would make the coming battle. Liberals, worried that Bork would move the Court well to the right, prepared a full-scale campaign against him, complete with newspaper and television advertising. It was the most highly-politicized and bitter campaign ever waged against a Supreme Court nominee up to that time.

It was also arguably the most dishonest. Senator Edward Kennedy set the tone with a demagogic attack on Bork just after the latter's nomination was announced: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution..."⁽³⁵⁾ As Bork wrote later, "Not one line of that tirade was true. It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did." But Kennedy and others continued to do so during the long confirmation hearings that followed. At one point, after Kennedy summarized what he said were Bork's views on curbing abuses of power by the executive branch, Bork responded that "those are most unfair characterizations of my views. Let me start--I hardly know where to start...."After he explained his real views, Kennedy, of course, did not apologize.⁽³⁶⁾

Bork's opponents, using the polling techniques of modern politics, realized they would be more effective if they stressed "privacy" and contraception rather than abortion.⁽³⁷⁾ They heavily stressed Bork's criticism of the Griswold decision. It did no good for Bork to say, as he did during confirmation hearings, that he didn't oppose the use of contraception and that he viewed the old Connecticut ban on contraception (the one struck down in Griswold) as "an outrage." He tried in vain to make the point that the question "is never whether you like the statute" but, rather, whether the statute is "contrary to the principles of the Constitution."⁽³⁸⁾

Senators also asked him about Roe v. Wade. He was already on record against it, and he told the committee that Roe "contains almost no legal reasoning," adding that the Court didn't say why abortion "is a private act." Even if it is private, he remarked, "there are lots of private acts that are not protected," but the Court didn't explain "why this one is protected. We are simply not told that." Under friendly questioning by Senator Orrin Hatch of Utah, Bork said that, without having all the facts on an abortion case, he didn't know how he would rule on it. He explained the points he would consider if faced with a challenge to Roe. Although showing that he would give an attorney supporting Roe every chance to make a case, he probably added to the worries of pro-Roe senators by even discussing the issue at length. And he may have alarmed them when he remarked, in speaking of the weight of precedent, that the Plessy v. Ferguson decision upholding segregation "was 58 years old when it was overruled, and a lot of customs and institutions had grown up around segregation."⁽³⁹⁾ At the time of the Bork confirmation hearings, the Roe precedent was only 14 years old.

Hatch tried to help Bork by mentioning prominent legal scholars who had criticized Roe.⁽⁴⁰⁾ Bork, however, did not expand on this point as he should have. An extended colloquy would have been educational for the media and the public and might have embarrassed the pro-Roe Democrats.

When the committee's lengthy interrogation of Bork was nearly over, Senator Leahy thanked the judge for answering all the questions Leahy had asked. "...you have sat there and answered and answered and answered," the senator remarked, adding that "I applaud you for it." Then Leahy and his liberal colleagues proceeded to hand Bork's head to him. With help from moderate and conservative Democrats, and several Republicans, they defeated him by a 58-42 vote on the Senate floor.⁽⁴¹⁾

Reeling from the Bork defeat, weakened by the Iran-Contra scandal, and still facing a Senate controlled by the Democrats, the Republicans decided to play it safe. Reagan nominated Anthony Kennedy, a little-known appeals court judge from California, for the still-vacant Court seat. Generally viewed as a moderate conservative, Kennedy had written little or nothing about abortion, and he was not badgered about it in the way other nominees had been or would be.

Senator Howell Heflin, an Alabama Democrat, asked Judge Kennedy how he would approach a ruling on Roe. Heflin raised the issue of stare decisis ("to stand by things decided"), the legal doctrine of following precedents, sometimes even wrongly-decided ones, to provide stability in the law. Many authorities say stare decisis has less weight in constitutional cases than others, because if the Supreme Court does not correct a wrongly-decided constitutional precedent, the only other way to change it is through the extremely difficult process of constitutional amendment. Judge Kennedy mentioned the idea that stare decisis "should not apply as rigidly in the constitutional area," but did not actually endorse that principle. There was reason for Roe opponents to worry when he said: "...it seems to me that when judges have announced that a particular rule is found in the Constitution, it is entitled to very great weight."⁽⁴²⁾

Clearing a path that would be followed by other post-Bork nominees, Kennedy said there's a right to privacy in the Constitution, although he preferred to call it "the value of privacy." He didn't suggest what limits, if any, applied to that value. There was more reason to worry about him when he told Senator Leahy: "I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage."⁽⁴³⁾ That sounded open-ended, to say the least.

Conservative columnist Cal Thomas had written about a meeting between Judge Kennedy and Senator Jesse Helms of North Carolina, then the Senate's leading abortion foe, that took place several weeks before the Kennedy confirmation hearings. According to Thomas, Helms told Kennedy, "I think you know where I stand on abortion," and Kennedy smiled and replied, "Indeed I do, and I admire it. I am a practicing Catholic." Senator Biden, the Judiciary Committee chairman at the time, asked Judge Kennedy about the Cal Thomas piece during confirmation hearings. Kennedy indicated the story was not totally accurate; he also said it "would be highly improper for a judge to allow his, or her, own personal or religious views to enter into a decision respecting a constitutional matter." Senator Carl Levin, a Michigan Democrat who was not even a Judiciary Committee member, submitted a query to Judge Kennedy on the meeting with Helms.

Undoubtedly both Biden and Levin were genuinely curious about the meeting, but their questions were also a form of hazing. It's one that goes back at least to 1957, when Supreme Court nominee William J. Brennan, Jr., was asked about possible conflict between his Catholic beliefs and the U.S. Constitution and laws.⁽⁴⁴⁾ It's possible that religious hazing affected Brennan, Kennedy and other judges, inclining them to bend over backwards to support legal abortion to prove that they were not influenced by their Catholic religious beliefs. Some years ago, a Philadelphia activist who was involved in sit-ins at abortion clinics told me that he and his colleagues always worried when Catholic judges presided over their trials. Because of the bend-over-backwards tendency, Catholic judges tended to treat them harshly--whereas Jewish judges were careful to protect the activists' civil liberties and less inclined to throw the book at them.

While the Democrats hazed Kennedy on privacy and his conversation with Senator Helms, the Republicans said little if anything on Roe, apparently acquiescing in the stealth strategy. After his confirmation by a 97-0 vote, Justice Kennedy initially voted to restrict abortion. But like Justice O'Connor, he upheld legal abortion when push came to shove in the 1992 Casey decision. Although he voted to uphold a ban on partial-birth abortion in 2000,⁽⁴⁵⁾ it's doubtful that he will ever vote to overturn Roe. (I hope he proves me wrong about this.)

Another Roller Coaster: Souter and Thomas

Of Republican nominees after Roe v. Wade, Judge David Souter would prove to be the greatest disaster for unborn children since John Paul Stevens. Both are honorable men ("So are they all, all honorable men..."),⁽⁴⁶⁾ but have terrible blind spots about the unborn. The double tragedy of the first President Bush's selection of Souter is that he was replacing Justice Brennan, a behind-the-scenes architect of Roe who also supported public funding of abortion and helped protect abortion clinics from regulation.⁽⁴⁷⁾ Replacing Brennan with a judicial conservative would have made an enormous difference and probably would have led to overturn of Roe.

But Judge Souter, who had served on New Hampshire's supreme court and a short time on a federal appeals court, had two friends in high places. One was his former employer and great admirer, Senator Warren Rudman of New Hampshire; the other was John H. Sununu, the President's chief of staff and a former governor of New Hampshire. Although on opposite sides of abortion--Rudman supportive and Sununu opposed--the two had worked together in Republican politics in New Hampshire. Indeed, Sununu was Rudman's campaign manager in a 1980 U.S. Senate race in which Rudman defeated a pro-life Democrat. Elected governor in 1982 with Rudman's strong support, Sununu told the senator, "Warren, anything you want in this state, you've got." Rudman asked that Sununu appoint Souter to the next vacancy on the state's supreme court, and Sununu replied, "Warren, it's done."⁽⁴⁸⁾

In 1990, as chief of staff to President George H. W. Bush, Sununu helped Senator Rudman obtain a Souter appointment to a federal appeals court. Justice Brennan retired soon after, and Rudman lobbied Sununu and Bush to move Souter up to the Supreme Court. But Souter, asked to fly to Washington to meet with the President, did not want to be quizzed on Roe v. Wade. "I won't take a litmus test....I won't discuss how I might rule in future cases," he told Rudman. So Rudman called Sununu and told him that "there's no sense in this if you plan on quizzing" Souter about abortion. According to Rudman's account, "John told me that absolutely wouldn't happen, and I reported that back to David, who agreed to go and meet the president." Bush liked Souter and promptly announced his nomination to the Supreme Court. Sununu apparently believed, and privately assured a key conservative, that Souter was "a home run."⁽⁴⁹⁾

Senator Rudman thought Souter could help avoid a split in the Republican Party over abortion--and also be confirmed--"if he could avoid being pinned down on Roe." He didn't know Souter's views on abortion and, because of the politics of the confirmation process, didn't want to know. Yet he guessed that Souter "probably thought, as I did, that Roe had been wrongly decided, as a matter of constitutional law," but that Souter "would never vote to overturn the decision, knowing what turmoil that would cause in our society."⁽⁵⁰⁾

Pro- and anti-abortion groups were both worried about Souter. He had been sensitive about doctors' conscience problems with respect to abortion. But he also had voted to allow the performance of abortions at Concord Hospital, where he was a trustee.

Democrats still controlled the Judiciary Committee and, as usual, did most of the hazing. But one pro-life Republican, Senator Gordon Humphrey from Souter's own state of New Hampshire, asked the judge some excellent questions. Souter generally declined to discuss Roe, remarking at one point that "I have not made up my mind" on it, or to say whether he thought abortion moral or immoral. That, he declared, would "play absolutely no role in any decision" he would make as a justice. He said he'd voted to allow abortions at Concord Hospital because it was "a community hospital...not tied to any sectarian affiliation" and one that "served people of all religious and moral beliefs." Responding to Senator Humphrey, he said his vote on that issue didn't imply that he felt the unborn aren't persons.⁽⁵¹⁾

Senator Humphrey made the point that "health of the mother" in Roe and other cases includes "emotional or mental health," which he called a "massive loophole." He asked Souter how to reconcile the fact that an unborn child can have a legal interest in an estate, yet under Roe have no right to life. Souter said something about weighing different interests of "potential parties"; but Humphrey, reading key quotes from the Roe opinion, contended that "there is no weighing in Roe. None. All of the rights and weight are assigned to the mother and nothing, zero, to the child." He also noted that the Supreme Court has recognized corporations--but not unborn children--as persons under the Fourteenth Amendment. "I have never in my life seen such a strained effort to rule out of the human race by legalistic means a whole class of human beings," Humphrey declared.⁽⁵²⁾

Senators still didn't know much about Souter's abortion views at the end of the hearings, although they did know he thought the Fourteenth Amendment protects a privacy right. The Senate confirmed him by a vote of 90-9. Ironically, liberal Democrats cast the nine votes against him. After Souter voted to uphold a right to abortion in the Casey decision two years later, a conservative remarked that "the posse is out looking for John Sununu."⁽⁵³⁾

In 1991 Justice Thurgood Marshall retired from the Court. The old civil rights lion (a Roe supporter) had been the first and only African American on the Court, and there was much pressure on President Bush to appoint another in his place. Bush chose Judge Clarence Thomas, a conservative who had served a short time on a federal appeals court. Liberals came out against Thomas, who opposed quotas in affirmative action programs and had once praised an article that used natural-law theory to make a case against abortion. The same groups that had defeated Robert Bork united against Thomas.

Biden, Kennedy, and Leahy all grilled Thomas on abortion and Roe during his confirmation hearings. Like other post-Bork nominees, he declined to state any views on Roe, but said there's a right to privacy in the Constitution. Senator Howard Metzenbaum, an Ohio Democrat, demanded to know whether Thomas thought "that the Constitution protects a woman's right to choose to terminate her pregnancy." Thomas replied that taking a position on that "would undermine my ability to be impartial." Metzenbaum repeated his question. Thomas said he had "no reason or agenda to prejudge the issue." Metzenbaum kept pressing him.⁽⁵⁴⁾ So did Senator Leahy, who was relentless in asking Thomas about any discussions he may have had about Roe when it came down--18 years earlier--while Thomas was in law school. Had he discussed it then? Had he ever discussed it? Had he ever said whether it was properly decided? Thomas said Roe may have been discussed in a law school group he was in, but that he didn't remember "personally engaging in those discussions." Outside of law school, he suggested, there may have been discussions "in the most general sense that other individuals express concerns one way or the other, and you listen and you try to be thoughtful." But he said he had never "debated the contents" of Roe. Leahy kept going, finally asking whether Thomas had decided in his own mind whether Roe was properly decided. Thomas said he had not.⁽⁵⁵⁾

Many critics later said Thomas had claimed he had never discussed Roe and contended that was a lie. But he didn't say he had never discussed it. He probably should have said, after answering the first question or two in Leahy's relentless litany: "Senator, with respect, I have already answered your question. But I don't think I should be interrogated on whether I had private conversations 18 years ago as a law student. I don't know of any other Supreme Court nominee who has been questioned in such a way." That might have taken the wind out of Leahy's sails.

After the last part of the Thomas hearings covered the sensational charges of sexual harassment that former Thomas staffer Anita Hill made against him, and Thomas offered a strong defense, the Senate confirmed him by the cliff-hanging vote of 52-48.⁽⁵⁶⁾ On the Court, Justice Thomas has been a firm vote against Roe v.Wade.

The Clinton Years: Ginsburg and Breyer

President Bill Clinton was fortunate in having two Supreme Court vacancies to fill early in his presidency, long before his impeachment battle. He was also lucky in having a Senate still controlled by Democrats. In 1993 Clinton chose Judge Ruth Bader Ginsburg to replace the retiring Roe dissenter, Justice Byron White. Before her service on a federal appeals court, Ginsburg had been a vigorous advocate for women's equality and had once led the Women's Rights Project of the American Civil Liberties Union. She was an outspoken supporter of legal abortion, although she preferred an equal-protection approach to it rather than Roe's privacy approach.⁽⁵⁷⁾ Senator Orrin Hatch, although a right-to-life advocate, had suggested to Clinton that he nominate Ginsburg or Stephen Breyer, another appeals court judge. Hatch later wrote that both "were highly honest and capable jurists" and "far better than the other likely candidates from a liberal Democrat administration."⁽⁵⁸⁾

Ginsburg had an impressive résumé, and few senators wanted to oppose the second woman ever nominated to the Supreme Court. A no-nonsense personality, she took charge of her confirmation hearings and made it clear that she wouldn't discuss cases likely to come before the Court unless she had already written about them. But she had both written and spoken about Roe. Senator Metzenbaum told her that he was "puzzled by your often repeated criticisms...that the Court went too far and too fast" in Roe. Ginsburg explained that she felt a more gradual change would have helped the abortion side; she thought that "if Roe had been less sweeping, people would have accepted it more readily."⁽⁵⁹⁾ But Judge Ginsburg was quite clear about her bottom line. She told another senator that in the abortion decision, "It is essential to woman's equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex." Senator Hatch later asked her some good questions on "substantive due process" in relation to Roe, but didn't budge her from her basic position.⁽⁶⁰⁾

Most of the supposed pro-lifers on the Judiciary Committee were so silent on Roe that several representatives of pro-life groups had to make the case against Ginsburg. Kay Coles James, then vice president of the Family Research Council, was effective in addressing Ginsburg's complaint that anti-abortion laws violate individual autonomy. James said that "a similar critique could be leveled at any law whatsoever. All laws direct human conduct in some fashion, and, to that extent, all laws deprive people of absolute autonomy." She wasn't willing to cede the feminist label to Ginsburg, either. Women need not "take the lives of their children in order to be equal to any man," James declared. "The real feminists are those who say I'm pregnant, I can bear children, and you had better be prepared to deal with it."⁽⁶¹⁾ But the Senate confirmed Ginsburg by a vote of 96-3. Two votes against her were based on anti-abortion grounds, and the third on a fear that she would engage in judicial activism.⁽⁶²⁾

In 1994 Justice Harry Blackmun, author of Roe v. Wade and many other abortion opinions, finally retired at age 85. Clinton nominated Judge Stephen Breyer to replace Blackmun. Observers described Breyer as pro-business,⁽⁶³⁾ a stance that undoubtedly appealed to Senator Hatch and other Republicans. As an appeals court judge, Breyer had once voted to uphold a two-parent consent law for a minor's abortion. On the other hand, he had voted to strike down, on First Amendment grounds, a regulation barring abortion counseling in a federal family-planning program. In his confirmation hearings, Breyer said Roe v.Wade had been "the law of this country" for over 20 years; he added that the abortion right had been reaffirmed in Casey and was "settled law."⁽⁶⁴⁾ Senator Hatch brought up the Griswold case and told Breyer that "it has been a stretch" to use Griswold to justify abortion. Hatch also told him that "giving substantial deference to prior erroneous rulings" on constitutional issues "just permits the Supreme Court to amend the Constitution."⁽⁶⁵⁾ But other right-to-lifers on the committee showed little or no interest in pressing Breyer on Roe. The Senate confirmed him by a vote of 87-9. Justice Breyer wrote the majority opinion in the 2000 case of Stenberg v. Carhart, in which the Court struck down a state ban on partial-birth abortion. Justice Ginsburg also voted with the majority in that case.⁽⁶⁶⁾

A New Chief Justice

The record of most pro-life senators in confirmation hearings was so poor that there was no place to go but up. In the 2005 hearings on President George W. Bush's nomination of the conservative John Roberts for Chief Justice, there was significant improvement. This was largely due to several senators who had joined the Judiciary Committee since the Breyer hearings. Senator Sam Brownback of Kansas was especially outspoken. Veteran member Orrin Hatch and newer members Jeff Sessions of Alabama and John Cornyn of Texas were helpful in countering the usual hazing from Democrats and from Senator Specter (who by then had become chairman of the committee).

With his impressive constitutional knowledge and attractive personality, Judge Roberts charmed the Judiciary Committee and the public; but he still had to run the gauntlet on abortion. Following the practice of other recent nominees, he declined to discuss Roe but said the Constitution includes a right to privacy. Specter pressed him hard on stare decisis, suggesting that there's such a thing as "super" stare decisis and even that Roe "might be a super-duper precedent" because the Supreme Court has had 38 chances to overrule it and has not done so. Roberts declared that Roe is "settled as a precedent of the court," is "entitled to respect," and entitled to even more respect because reaffirmed by Casey. Yet he also said that, while overruling a precedent is "a jolt to the legal system," stare decisis principles "recognize that there are situations when that's a price that has to be paid."⁽⁶⁷⁾

Senator Cornyn stressed that stare decisis hadn't kept the Court from overturning major precedents on segregation, homosexual activity, and the death penalty. And Senator Brownback said that "the Supreme Court has overruled itself in 174 cases, with a substantial majority of those cases involving constitutional, not statutory, issues." (A recent Library of Congress study gives a higher number: 228 overruled decisions.)⁽⁶⁸⁾ Brownback cut to the heart of the abortion issue when he said that whether the unborn child "is a person or is a piece of property is the root of the debate....If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses."⁽⁶⁹⁾

Earlier in the Roberts hearings, Senator Dianne Feinstein had used hard-case stories in support of Roe. "As a college student at Stanford," she said, "I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back-alley abortion. I knew a young woman who killed herself because she was pregnant."⁽⁷⁰⁾ (No one asked Feinstein whether anyone had offered nonviolent alternatives to the desperate women.) Other Democrats had emphasized similar stories at prior confirmation hearings, but pro-life senators had not countered with hard cases that did not end in abortion and that turned out well. Brownback now did so, describing Jimmy, a young man with Down Syndrome who operates an elevator for senators. "His warm smile welcomes us every day," Brownback remarked; but, alluding to prenatal testing and abortion, he added that "80 to 90 percent of the kids in this country like Jimmy never get here."⁽⁷¹⁾

Brownback took this a step further when the committee met to vote on the Roberts nomination. He introduced a 14-year-old girl with Down Syndrome. "And it just seems so strange to me," he commented, "that we want to celebrate her, and we do celebrate her, and yet in the womb 80 percent are killed." He spoke of a "new eugenics" and suggested that when someone has a disability, "we should be standing up more," rather than less, for that person. "Isn't that the great heritage of this country?" he asked.⁽⁷²⁾

The Senate confirmed John Roberts as Chief Justice by a vote of 78-22. The votes against him, all from Democrats, were based on worries about how he might vote on Roe and other issues.⁽⁷³⁾

Questions for the Future

This article, completed shortly before the confirmation hearings for Judge Samuel A. Alito, Jr., will reach subscribers after the hearings. I hope Alito, President Bush's nominee to replace Justice Sandra Day O'Connor, will have acknowledged-- and declined to recant--his 1985 statement that "the Constitution does not protect a right to an abortion."⁽⁷⁴⁾ And I hope pro-life Republicans on the Judiciary Committee will have asked good questions and countered well the Democrats' hazing of Judge Alito.

There is no way to know when the next Supreme Court vacancy will occur; but it could be within a year or two. Here are some questions for the next nominee:

"Judge, in Roe v.Wade, the Supreme Court didn't even hear from an attorney representing unborn children before deciding that the Fourteenth Amendment doesn't protect them. If Roe is ever reconsidered, don't you think the Court should require the appointment of a guardian ad litem to represent the unborn?"⁽⁷⁵⁾

"Some people are puzzled about why the Supreme Court treats corporations--but not unborn children--as persons under the Fourteenth Amendment. Could you please explain its reasoning?"

"Critics say Roe has given us a two-tiered system of justice, in which some human beings have rights and others do not. Now some people are trying to put handicapped babies and people with severe brain injuries down on that second tier with the unborn. I have to wonder: Who's next? Are we headed toward a system where those who have the most legal protection for their rights will be those who need it least--the healthy, wealthy, and powerful? Doesn't this go against equal protection of the laws in a profound way?"

"When the Court declared that it 'need not resolve the difficult question of when life begins,' didn't it make a confession of incompetence? I learned from high-school biology that life begins at fertilization. Aren't judges supposed to recognize scientific evidence when it bears directly on a case?"

"In Doe v. Bolton, the companion case to Roe v. Wade, the Court said that in making an abortion decision, a doctor may consider 'all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors may relate to health.'⁽⁷⁶⁾ Doesn't this mean that an abortion for a mother's 'health' can be an abortion for any reason at all?

"Judge, you and others have said that even if a Supreme Court precedent is wrong, there must be additional reasons to overturn it--for example, that it has proved unworkable, or has warped a whole area of law. But suppose it has done great injustice to a whole class of human beings? Wasn't that the main problem with Dred Scott v. Sandford, Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States?⁽⁷⁷⁾ Isn't great injustice a good reason for overruling an erroneous decision?"

"Gianna Jessen was born in an abortion clinic in California after a saline abortion failed to kill her. She has cerebral palsy as a result of the abortion, but is happy to be alive. She once said, at a congressional hearing, 'The best thing I can show you to defend life is my life. It has been a great gift.'⁽⁷⁸⁾ I have no question to ask about her, Judge. I just urge you to keep her in mind."

Notes

1. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Sandra Day O'Connor, 97^th Cong., 1^st sess., 9-11 Sept. 1981, 108; and transcript of "Hearings on the Nomination of Judge Roberts," 13 Sept. 2005 (print preview format), 3, www.nytimes.com.

2. I have not included the late Chief Justice William Rehnquist among the nine. Already on the Supreme Court, and a dissenter in Roe v. Wade, he was not asked about Roe in his 1986 confirmation hearings for Chief Justice. See U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Justice William Hubbs Rehnquist, 99^th Cong., 2^nd sess., July-Aug. 1986.

3. Roberts hearings (n. 1), 14 Sept. 2005, 66.

4. Michael Stokes Paulsen and John Yoo, "Make Miers Pass a 'Litmus Test,'" 18 Oct. 2005, www.latimes.com.

5. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Judge Antonin Scalia, 99^th Cong., 2^nd sess., 5 & 6 Aug. 1986, 214.

6. David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 609-615, 639, & 875-879 (nn. 16-28).

7. Ibid. See, also: U.S. Senate, Committee on the Judiciary, Subcommittee on Constitutional Amendments, Hearings on Abortion, 93^rd Cong., 2nd sess. & 94^th Cong., 1^st sess., 1974-1975, 4 parts, part 4, 106-224 (Prof. Robert Byrn's criticisms) and 523-580 (Prof. Joseph Witherspoon's criticisms); and John T. Noonan, Jr., A Private Choice (New York: Free Press/Macmillan, 1979). I originally, and mistakenly, included Prof. Joseph Dellapenna among the right-to-life law professors. He is not, although he's a strong critic of Roe v. Wade. See my article on "How the Supremes Flunked History," Human Life Review, vol. 32, no. 2 (Spring 2006), 41-51 (posted elsewhere on this site), for information on Dellapenna's views.

8. Garrow (n. 6), 668-671.

9. Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press/Macmillan, 1990), 267-349; and Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (New York: W. W. Norton, 1989), 80-82, 99, 160, & 177-179.

10. Bork (n. 9), 99.

11. O'Connor hearings (n. 1), 171.

12. Quoted in John C. Danforth, Resurrection (New York: Viking Penguin, 1994), 27.

13. Ken Foskett, Judging Thomas (New York: HarperCollins, 2004), 229.

14. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, 102^nd Cong., 1^st sess., Sept.-Oct. 1991, 4 parts, part 4, 157-158; and Orrin Hatch, Square Peg (New York: Basic Books, 2002), 154-156.

15. John A. Lomax, Cowboy Songs and Other Frontier Ballads (New York: Macmillan, 1927, new ed., reprint), 87.

16. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of John Paul Stevens to be a Justice of the Supreme Court, 94^th Cong., 1^st sess., 8-10 Dec. 1975; ibid., 80-81; and Lesley Oelsner, "Opinions by Stevens Hint Attitudes of Nominee to Court," New York Times, 8 Dec. 1975, 37.

17. Lesley Oelsner, "Senate Confirms Stevens, 98 to 0," ibid., 18 Dec. 1975, 1 & 34.

18. Congressional Quarterly Weekly Report, 19 July 1980, 2046.

19. "Statement by Governor Ronald Reagan, Los Angeles, California," 14 Oct. 1980 press release from Reagan Bush Committee, Arlington, Va.

20. Kate Zernike, "Pool of Female Judges Has Boomed in 24 Years," 29 Oct. 2005, www.nytimes.com.

21. Joan Biskupic, Sandra Day O'Connor (New York: HarperCollins, 2005), 74-85; and O'Connor hearings (n. 1), 244 & 336.

22. Ibid., 244 & 280-281.

23. Lee Epstein and Joseph F. Kobylka, The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill, N.C.: University of North Carolina Press, 1992), 244-247, 258-259, 282-287, & 291-298; and Kamen (n. 53, below).

24. O'Connor hearings (n. 1), 57-58.

25. Ibid., 60-61, 98, 63, & 95.

26. Ibid., 107 & 198-200.

27. Ibid., 248 & 124-125.

28. Linda Greenhouse, "Senate Confirms Judge O'Connor; She Will Join High Court Friday," New York Times, 22 Sept. 1981, A-1 & A-25; and Edward Walsh and Amy Goldstein, "Supreme Court Upholds Two Key Abortion Rights," Washington Post, 29 June 2000, A-1 & A-12.

29. Epstein and Kobylka (n. 23), 259-260.

30. See n. 2, above; and Linda Greenhouse, "Senate, 65 to 33, Votes to Confirm Rehnquist as 16^th Chief Justice, New York Times, 18 Sept. 1986, A-1 & A-26.

31. "In His Own Words: Antonin Scalia on Abortion, Bias and Libel," New York Times, 19 June 1986, D-27.

32. Scalia hearings (n. 5), 37-38.

33. Ibid., 101-102.

34. Greenhouse (n. 30).

35. Congressional Record, 100^th Cong., 1^st sess., vol. 133, part 14, 1 July 1987, 18518-18519.

36. Bork (n. 9), 268; and U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States, 100^th Cong., 1^st sess., Sept. 1987, 5 parts, part 1, 343-345.

37. Bronner (n. 9), 158-159.

38. Bork hearings (n. 36), 182 & 184.

39. Ibid., 184-187, 292-293, & 265.

40. Ibid., 186.

41. Ibid., 754; and Linda Greenhouse, "Bork's Nomination Is Rejected,58-42; Reagan 'Saddened,'" New York Times, 24 Oct. 1987, 1 & 10; and "Senate's Roll-Call on the Bork Vote," ibid., 10.

42. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States, 100^th Cong., 1^st sess., 14-16 Dec. 1987, 135-136.

43. Ibid., 121 & 164.

44. Ibid., 90-91 & 755; and U.S. Senate, Committee on the Judiciary, Hearings on Nomination of William Joseph Brennan, Jr., 85^th Cong., 1^st sess., 26-27 Feb. 1957, 32-35.

45. Linda Greenhouse, "Senate, 97 to 0, Confirms Kennedy to High Court," New York Times, 4 Feb 1988, A-18; Jeffrey Rosen, "The Agonizer," New Yorker, 11 Nov. 1996, 82-90; and Charles Lane, "Justice Kennedy's Future Role Pondered," Washington Post, 17 June 2002, A-1 & A-8.

46. Mark Antony in Shakespeare's Julius Caesar, act 3, scene 2.

47. Mary Meehan, "Justice Blackmun and the Little People," Human Life Review 30, no. 3 (Summer 2004), 86-128, 102-107, & 112-114.

48. Warren B. Rudman, Combat: Twelve Years in the U.S. Senate (New York: Random House, 1996), 28-31 & 159-160. John H. Sununu, the former governor, should not be confused with his son, John E. Sununu, who is now a U.S. Senator from New Hampshire.

49. Ibid., 162-163 & 168-169; R. W. Apple, Jr., "Sununu Tells How and Why He Pushed Souter for Court," New York Times, 25 July 1990, A-12; Philip Shenon, "Conservative Says Sununu Assured Him on Souter," ibid., 24 Aug. 1990, A-15; and T. R. Goldman, "White House Wants a High Court Justice Who Won't 'Go Souter,'" Legal Times, 24 Oct. 2005, accessed on www.law.com.

50. Rudman (n. 48), 164-168.

51. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States, 101^st Cong., 2^nd sess., Sept. 1990, 115-117, 168-170, 189, 211, & 174-175.

52. Ibid., 173 & 272-275.

53. Ibid., 54; Richard L. Berke, "Senate Confirms Souter, 90 to 9, as Supreme Court's 105^th Justice," New York Times, 3 Oct. 1990, A-1 & A-24; and unnamed conservative in the Bush administration, quoted in Al Kamen, "Center-Right Coalition Asserts Itself," Washington Post, 30 June 1992, A-1 & A-9.

54. Thomas hearings (n. 14), part 1, 179-184.

55. Ibid., 222-223. Senators also queried Thomas at length about the article on natural law and abortion that he had once praised. Ibid., 127-129, 146-148, 170-171, & 218-221.

56. R. W. Apple, Jr., "Senate Confirms Thomas, 52-48...," New York Times, 16 Oct. 1991, A-1 & A-19.

57. Ruth Marcus, "Clinton's Unexpected Choice Is Women's Rights Pioneer," Washington Post, 15 June 1993, A-1 & A-14; Joan Biskupic, "Nominee's Philosophy Seen Strengthening the Center," ibid., A-1 & A-12; and Ruth Bader Ginsburg, "The Case Against the Case," ibid., 20 June 1993, C-3.

58. Hatch (n. 14), 180.

59. U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the United States, 103^rd Cong., 1^st sess., 20-23 July 1993, 148-149.

60. Ibid., 207 & 270-272.

61. Ibid., 529-530.

62. Nancy E. Roman, "Verdict in on Ginsburg," Washington Times, 4 Aug. 1993, A-1 & A-6.

63. Nancy E. Roman, "Choice Could Solidify Center on Property Rights, Abortion," ibid., 14 May 1994, A-1 & A-12; and Nancy E. Roman, "Breyer Opposed by Wide Range of Interest Groups," ibid., 16 July 1994, A-3.

64. Nancy E. Roman, "Breyer's Record Mixed on Abortion-Rights Issue," ibid., 23 May 1994, A-1 & A-11; and U.S. Senate, Committee on the Judiciary, Hearings on Nomination of Stephen G. Breyer to be an Associate Justice of the Supreme Court of the United States, 103^rd Cong., 2^nd sess., 12-15 July 1994, 280-281 & 268-269.

65. Ibid., 290 & 292.

66. Helen Dewar, "Breyer Wins Senate Confirmation to Top Court, 87 to 9," Washington Post, 30 July 1994, A-9; and Walsh and Goldstein (n. 28).

67. Roberts hearings (n. 1), 13 Sept. 2005, 1-7.

68. Ibid., 138; ibid., 12 Sept. 2005, 54; and George Costello, "The Supreme Court's Overruling of Constitutional Precedent: An Overview," ([Washington:] Library of Congress, Congressional Research Service, 29 Nov. 2005), [1].

69. Ibid., 14 Sept. 2005, 7.

70. Ibid., 12 Sept. 2005, 32.

71. Ibid., 14 Sept. 2005, 9-10.

72. Transcript of "Senate Panel's Debate on the Confirmation of Judge Roberts," 22 Sept. 2005 (print preview format), 45-46, www.nytimes.com

73. Congressional Record (daily ed.), 109^th Cong., 1^st sess., 29 Sept. 2005, S10631-S10650.

74. Quoted in Jo Becker and Charles Babington, "No Right to Abortion, Alito Argued in 1985," Washington Post, 15 Nov. 2005, A-1 & A-9.

75. There were guardians ad litem (guardians who represent minors or legal incompetents in lawsuits) for the unborn in some other abortion cases at the time. See U.S. Senate (n. 7), part 4, 169-170, 240-241, 248, & 528.

76. Doe v. Bolton, 410 U.S. 179 at 192.

77. These cases upheld, in the order named: slavery, segregation, compulsory sterilization, and exclusion of Japanese Americans from the West Coast during the Second World War.

78. U.S. House, Committee on the Judiciary, Subcommittee on the Constitution, Hearing on Origins and Scope of Roe v. Wade, 104^th Cong., 2^nd sess., 22 April 1996, 28-29.