Don’t just blame Kennedy

Last updated on: June 16, 2008 at 9:00 am by Policraticus

Don’t just blame Kennedy 2008-06-16T09:00:45-05:00 Policraticus

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On a post on abortion and the Supreme Court over at the Fidelis blog, Cranky Con left the following comment:

I would remind those that harp on the GOP’s supposed failure to appoint Justices who would protect innocent human life by overturning Roe about one thing. Ronald Reagan originally selected Robert Bork to be on the Court in 1987. The new Democratic majority in the Senate rejected Bork, and Regan was forced to go with the more moderate Anthony Kennedy. Five years later, in Casey v. Planned Parenthood, a 5-4 majority upheld Roe, with Kennedy voting in the majority. We know with pretty much 100% certainty (because he’s said as much) that Robert Bork would have voted to overturn Roe. So while GOP presidents have disappointed in their SCOTUS selections, it because these appointments have voted contrary to the President’s wishes.

There subsists a myth, perpetuated here, that Justice Anthony Kennedy, in changing his mind last minute, is singly responsible for the upholding of Roe in the Casey v. Planned Parenthood case (1993). President Reagan, the myth goes, was forced to appoint the moderate and maverick Kennedy after the President’s initial nominee, Robert Bork, was left unconfirmed by the Senate in 1987. Reagan was so close to repealing Roe, right? Wrong.

Reagan gave up way too easily. Bork was an ultra-conservative with heavy baggage from his time as Attorney General under President Nixon. The odds were stacked against his confirmation before Reagan ever nominated him. Reagan’s next choice was Douglas Ginsburg, who withdrew himself from consideration before Reagan officially nominated him (Ginsburg was concerned that his pot smoking days would catch up to him). Did Reagan seek out a third option for the Court who would be conservative like Bork and Ginsburg but without the baggage? No. Reagan caved in and played it safe by appointing the more moderate and unpredictable Kennedy. Kennedy got confirmed, and in 1993 he voted in the Majority in Casey v. Planned Parenthood. The mythologists will tell you that we were so close to repealing Roe, and that Kennedy, in voting against the wishes of Reagan and then-President George H.W. Bush, kept us from a watershed pro-life victory.

However, the battle to repeal Roe was not lost with Kennedy. Rather, Reagan’s intent to place gender above policy in 1981 was really where the abortion battle was lost in the Court. Keeping with his campaign promise to appoint the first woman to the Supreme Court, Reagan’s choice of Sandra Day O’Connor cannot be forgotten (Cranky Con doesn’t mention her), for, like Kennedy, she supported upholding Roe in Casey v. Planned Parenthood. Sad thing is, Reagan knew that the appointment of O’Connor could compromise the pro-life cause as one of his 1981 diary entries relates:

Called Judge O’Connor in Arizona and told her she was my nominee for Supreme Court. Already the flak is starting, and from my own supporters. Right-to-life people say she’s pro-abortion. She declares abortion is personally repugnant to her. I think she’ll make a good justice.

Ronald Reagan lost the abortion battle for the pro-life movement with his two reckless and ill-advised Court appointments, and George H.W. Bush consolidated the pro-choice Court with his choice of David Souter, who is now considered to be one of its more liberal Justices. History is history. Twelve years of conservative, pro-life, Republican leadership during which five Supreme Court Justices were appointed (O’Connor, Kennedy, Scalia, Souter, and Thomas) and Roe remains.

Don’t blame Anthony Kennedy alone for Casey v. Planned Parenthood. O’Connor and Souter, both appointed by conservative, pro-life Republican presidents, are equally at fault. But, really, the short-sightedness of Presidents Reagan and Bush is the reason that humans are continually slaughtered inside (and sometimes outside) the womb under the protection of the law. Whether Reagan and Bush were unable to forecast how their judges would vote or Reagan and Bush really did not have the repeal of Roe in heart with their appointments is hard to tell. What is clear, however, is that if the president of the United States is to be held to task in terms of the abortion fight, then Reagan and Bush are failures.

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