Editorially Speaking

George W. Bush's Supreme Decision

When I originally started thinking about this editorial in mid-July, Judge John G. Roberts, Jr. had not yet appeared on most folks' radar screens. He is now the blip everyone's watching. Who Mr Roberts is and what he believes are questions on the minds of liberals and conservatives alike. All seem to sense the gravity of the moment. With Supreme Court Justice Sandra Day O'Connor's announced resignation, and with Chief Justice William Rehnquist's expected resignation in lieu of his battle with thyroid cancer (a battle he's not expected to win), it appears almost certain that President Bush will have the opportunity to make at least two appointments to the Supreme Court in what remains of his second term. That these two appointments are important almost seems like an understatement—perhaps "monumental" would be a better word.

Even before Mr. Roberts' nomination, the Beltway spin machines on both sides of the political spectrum were hard at work, expecting the President to tap a hard-line ideologue for the Court. The liberal media, of course, did their best (or worst) to steer the public in the direction of their political and philosophical proclivities, which they attempted to veil with pretended non-partisanship, speaking and writing of things like just wanting to make sure Mr. Bush didn't appoint an ideologue to the Court. Instead, they insisted he appoint a man or woman who will represent "all the people," not just hard-line conservatives and Republicans. What this really meant was that they didn't want Mr. Bush to appoint anyone to the Court who might overturn Roe v. Wade. On the other hand, hard-core conservatives wanted someone on the bench who would vote to overturn Roe.

So, the liberals and conservatives, no matter their political or philosophical inclinations, were ready for a fight. Even so, the real question in everyone's mind was what Mr. Bush would do. Would he do battle by nominating two judicial conservatives, or would he cave in, like his father did, and nominate two Souter-like (read "liberal" or "muddy centrist") candidates who he believes he can get confirmed? Would he try to "split the middle" by nominating one moderate (again, read "liberal" or "muddy centrist) and one conservative, thereby seeking a compromise with the Democrats who he, in turn, hopes will give him a pass on a conservative if he kowtows to them by offering a "moderate" as his first choice? Is Judge Roberts a true judicial conservative or is he the moderate the liberals are insisting the President must appoint to replace O'Connor? It appears Mr. Roberts may be a genuine judicial conservative and, therefore, a strict constructionist or constitutionalist. If this is truly the case, then Mr. Bush has done well and his conservative legacy will be confirmed. However, a recent Newsweek article said it this way:

Efforts to predict [Roberts'] future Supreme Court votes from past judicial opinions and legal writings (he had been on the U.S. Court of Appeals for the District of Columbia for two years and served in the Reagan White House and the Reagan and Bush "41" Justice Departments, the last as deputy solicitor general) have proved mostly fruitless or meaningless. He might vote to reverse Roe v. Wade, the courts's 1973 landmark legalizing abortion on demand. On the other hand, he may not. (Best bet: he will vote to uphold Roe, but go along with state-imposed restrictions on a woman's right to choose.) (Newsweek, August 1, 2005, p. 24).

(To keep things in historical perspective, it should be remembered that one of Richard M. Nixon's campaign issues in 1968 was the liberalism of the Supreme Court under Chief Justice Earl Warren. Consequently, he nominated Harry Blackmun, who was supposed to be a judicial conservative, to the Court in 1970. But in 1973, it was Justice Harry Blackmun who wrote the majority opinion in Roe v. Wade. Not only that, it was a sad fact that some of the Court's staunchest liberals, Justices Earl Warren and William Brennan, had been appointed by President Dwight D. Eisenhower, a Republican.)

If Roberts turns out to be more moderate than he is conservative, then Mr. Bush has broken the promises he made in two presidential campaigns to appoint truly conservative judges to the courts, including the Supreme Court, and this was interpreted by most as being nominees in the Scalia-Thomas mode. But it is safe to say that Roberts is neither a Scalia or Thomas. This means that Bush has taken the chance of eroding/alienating his political base—a base in which there is a rather significant contingent motivated by their deeply held religious convictions against abortion-on-demand. If this group comes to believe Mr. Bush has let them down at this extremely critical moment, then it is reasonable to expect that many, like myself, will be through with the political process. Without this religious contingent no Republican candidate can hope to win the 2008 presidential election. In that case, the next president of the United States would most likely be a Democrat in the mold of Bill and Hillary Clinton.

I've read a lot about George W. Bush and there is much about him I like. I didn't have any trouble voting for him twice. However, there are things about him that worry me. He has a tendency to couch things in a way I wouldn't, providing the fodder his enemies need to get away with calling him a liar. Because he is frequently misunderstood, it appears he tries too hard to be liked, reaching out graciously to political opponents even when they appear to be completely undeserving of his attention, praise, or trust. He has done that this time, and it bothers me. It must also be remembered that the President has, on many occasions, been willing to disappoint his conservative base (viz., steel tariffs, farm bill, immigration, spending, et cetera). Has he done that this time? I hope not, but I'm simply not sure, and neither are some of his supporters, and this, more than anything else, concerns me, for there shouldn't be any doubt about the kind of judges he'll nominate to the Supreme Court—the kind that'll reverse the liberal control that has existed since the the Warren Court. These continuing doubts make me uncomfortable, as it indicates that even the supporters of George W. Bush think he may have already wilted before the immense political and media pressures being brought to bear in connection with his first Supreme Court nomination.

So, the occasion is momentous. If George W. Bush, a man who told us he was a true conservative (and we believed him), cowers before the onslaught of liberalism at this most critical moment, then I think any chance of overturning Roe v. Wade will be lost, and if so, this nation is on its way to the pit of God's judgment, for if our society will not repent of its unrestrained killing of the innocent, then God will surely take it down to the pit. Without national repentance, Divine judgment will inevitably come (Isa. 13-23; Jer. 46-51; Ezek. 25-32; Amos 1-2, et cetera). The Bible makes it absolutely clear that God's adversaries, when the time is right (cf. Gen. 15:16), will meet the fire of His wrath. Why? Because they have seen fit to neglect His absolute standard of Righteousness (Psa. 97:1-9). In other words, "Righteousness exalts a nation; but sin is a reproach to any people" (Prov. 14:34).

The process of national or cultural decay, a four-step decline, is outlined by the apostle Paul in Romans 1:

  1. A nation rejects God,
  2. it turns to false religion,
  3. it becomes bogged down in immorality and violence,
  4. and then God judges it.
Since the January 22, 1973 Supreme Court ruling known as Roe v. Wade, 43 million children have lost their lives to abortion. This is 11 million more than the current population of Canada. Think about what all this innocent blood must look like to God. So, who Bush nominates to the Supreme Court is most critical, in that presently there are three conservative-leaning justices on the Court (Rehnquist, Scalia, and Thomas) who would approve bans on partial-birth abortion and would probably be inclined to overturn Roe v. Wade, returning the matter to the states where it constitutionally belongs. On the other hand, there are four liberal-leaning justices (Ginsburg, Stevens, Breyer, and Souter) who would not be expected to do so. Until O'Connor's announced retirement, this left Justices O'Connor and Kennedy as the "swing votes," so-called because they slid frequently to one side or the other, depending on the issue. This means the Court is potentially one vote away from approving bans on partial-birth abortion, and two votes away from overturning Roe v. Wade. Therefore, Mr. Bush's next two nominations (this one and the one to come) are pivotal.

There can be little doubt that this is a watershed moment. If Mr. Bush fails to appoint pro-life judges, then all appears lost and the future of the Republic is most certainly dim. I am praying that President Bush has exercised himself in accordance with his stated convictions and is not lying about John Roberts' judicial conservatism. (The rumor out of the White House is that Bush interrogators have asked Roberts all the right questions and that he is a true conservative who is not expected to "grow in office," which is an expression that refers to moving toward the liberalism of the establishment.) Time will tell. But if Mr. Bush's first nominee had been someone "on the record" as a true judicial "hard-core" conservative, someone like Judge Janice Rodgers Brown or Judge J. Michael Luttig et al., then there would be no doubt that the battle to save the Republic had been engaged, with the liberal groups like People For The American Way, Moveon.org PAC, and NARAL Pro-Choice America forced to spend most of their money trying to stop the first nominee, which in turn would have left more wiggle room for the second nominee to squeeze through. As it stands, there is already talk that the liberals, some of whom have had very nice things to say about Mr. Roberts, are going to let him have a relatively easy time of it. There is even talk from Hillary Rodham Clinton's staffers that she's planning on voting for Roberts. Of course, things could heat up the closer we get to the Senate Judiciary Committee hearings, as it did with Robert Bork and Clarence Thomas. Nevertheless, the current talk of Robert's eventual acceptance being a "sure thing" makes me awfully uncomfortable. We'll just have to wait and see how this plays out. Again, time will tell.

I had hoped that Mr. Bush would come out "shooting from the hip and taking no lip." He appears to have taken a different approach. But if Mr. Roberts really is the judicial conservative the President says he is, and if he is, in turn, confirmed by the Senate, then we'll chalk one up for the President, continuing to hope his next nominee will be less stealthy than Roberts has appeared to be, at least at first glance. There's no doubt in my mind that if Roberts had been on the Court in January of 1973 he would have voted against Roe v. Wade. Even so, I strongly suspect he will not now vote to overturn it. Why? The principle of stare decisis (or precedent), and he is known to be a stickler for it. Consequently, he will feel pressed to apply previous Supreme Court decisions, whether he agrees with them or not, and it has been noted that at his 2003 confirmation hearing for his present seat on the appellate court, he said he considered Roe v. Wade to be "settled law." According to Doug Kmiee, who worked at the Justice Department when Roberts was a deputy Solicitor General, Roberts probably thinks Roe is "too far out of the station" to roll back now. This means that the best we'll likely get out of Roberts on this subject, if confirmed, is that he would vote to allow states more room to restrict abortion, which would be a definite improvement over the present situation, but certainly not the desired remedy. Consequently, I admit to feeling a bit betrayed by the Roberts nomination.

It is pretty safe to say that Judge Roberts is no Robert H. Bork, no Antonin Scalia, no Clarence Thomas. These men have been referred to by University of Virginia Law School Dean John Jeffries, Jr., as "top-down" judges. By this he means judges who come to the bench with a set of ready-made theories, ready to make radical changes in order to restore what they consider to be the integrity of the Court, particularly as it applies to Roe v. Wade. On the other hand, Jeffries describes Roberts as a "bottom-up" judge, sensitive to precedent and the facts of the cases that come before him. Roberts is probably more like Chief Justice William Rehnquist, the man for whom he once clerked and a judge who normally votes conservatively. This, in itself, would move the Court further to the right, which isn't a bad thing, but I had personally hoped President Bush would boldly use the current events to address the American public from the unique vantage point of that "bully pulpit" we call the presidency, a pulpit conservative, anti-abortion Americans gave to him in his two terms as President of the United States, and a pulpit we fully expected him to take advantage of. For him to speak of returning civility to the political process is one thing, but returning genuine civility to our nation by doing those things that will lead to overturning Roe v. Wade is quite another. In other words, talking the talk isn't worth very much if one is not willing to walk the walk.

The President is on record as being anti-abortion, but both he and his wife are also on record as believing the nation is not yet ready for a reversal of Roe v. Wade. Now, the President's first nominee "does not see himself a soldier in some great cultural conflict," according to Bill Barr, attorney general in the George H.W. Bush administration. This all makes me most uncomfortable because I believe we are way past due for such a reversal in the cultural conflict raging in America. In fact, I am convinced that the night is now far spent and the day is approaching for engaging the abortion issue where it started (cf., Rom. 13:12), remembering that it was liberal activist justices who legislated their own social and philosophical think-sos from the bench that began this most ungodly of wars—a war against the innocent unborn.

So much valuable time has been lost since that rather infamous "borking" liberal pro-abortionists put on poor ol' Judge Bork back in 1987. After Bork's failed nomination, Ronald Reagan first nominated Judge Douglas Ginsburg, who decided to step down when his previous pot-smoking was made public. He then nominated Judge Anthony Kennedy, who was supposed to be a judicial conservative, but wasn't. Justice Kennedy, who could have voted to overturn Roe v. Wade in the 1992 case of Planned Parenthood v. Casey, made a last-moment switch, according to Justice Harry Blackmun's personal papers, siding with the four other justices who wished to preserve Roe. As he continued to "evolve," he turned out to be one of two so-called "swing votes" along with O'Connor. Then, when George H.W. Bush finally got his chance, instead of nominating a hard-core judicial conservative, he caved in to the liberals by nominating Robert Souter, a nominee he considered to be "safe." Souter, of course, turned out to be nothing less than a flaming liberal. It has been reported that George W. Bush does not intend to make the same mistake his father made. Again, time will tell, but it is worth noting that over at The Weekly Standard, Fred Barnes, one of the most pro-Bush columnists in America, posted his morning after regrets writing that Bush had made a "safe," not a bold, pick in Roberts. Ann Coulter, of course, was livid, saying, "We don't know much about John Roberts." She continued, "Stealth nominees have never turned out to be a pleasant surprise for conservatives." In the meantime, and although I'm a bit chagrined by it all, I'll continue to pray for Mr. Bush and our nation, realizing that we may be nearing, or have already approached, that day when the righteous judgment of God must inflict itself upon our nation. I pray it is not yet too late for our country, but must admit that I uncomfortably fear it may be.

If I were not a Christian, I might actually be despondent. At such moments it is good to be a Christian, exercising faith in and reliance upon the Righteous and Sovereign Judge of the Universe. Men often do not do what is right; but He does, and all in His own time. In the meantime, we cannot shirk our own God-given responsibilities. W e must continue in well-doing (cf. Rom. 2:7; Gal. 6:9; 2 Thess. 3:13) endeavoring to be the light and salt our Lord commanded us to be (cf., Matt. 5:13-16). But when all is said and done, the Christian trusts in the judgments of his gracious God and Savior, Jesus Christ. Consequently, there will frequently be disappointments, but never despair.

Be anxious for nothing, but in everything by prayer and supplication, with thanksgiving, let your requests be made known to God; and the peace of God, which surpasses all understanding, will guard your hearts and minds through Christ Jesus.

(All editorials are written by Allan Turner. You can contact him at allan@allanturner.com )

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