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Losing Roe: No Need to Panic


This is Dark Cloud on Wednesday, July 20, 2005.

In some ways, I’d like the Senate hearings on Judge Roberts for a seat on the Supreme Court to consist of one question by the ranking Democrat. “Hi Judge Roberts, your credentials are impressive, you’re certainly legally qualified, but are you politically qualified? This can be settled by the answer to one question and one question only. Under what circumstances would you vote to overturn Roe vs. Wade? You’re expressed personal opinion that you’re against abortion, and think Roe flawed, but you’ve also said that it’s settled law. Stare decisis and all that. So, John, what’s the scoop?”

Judge Roberts’ answer to that question, which might take, shorn of excess, say fifteen minutes, would reduce the gasbag emissions of the sputtering Senators by about 99%. When he finishes that answer, virtually everyone will know whether he’s in or out. All else is superfluous.

But of course, that won’t happen. I can only hope the Democrats don’t make the mistake of dragging this on to no real purpose if Roberts does well in personal presentation. He’s a conservative, but seems thoughtful. At least, with what little we know of him.

Other Republican Presidents have selected known conservatives and had their faces smeared in something more repugnant than mud, at least in the eyes of conservative lobbies. Teddy Roosevelt advanced Oliver Holmes, and was flabbergasted when Holmes actually thought for himself and looked ahead and elevated his court. Although mostly conservative, and not deserving of the title Great Dissenter, Holmes surprised Roosevelt and others with his Libertarian bent and respect for dissent and the flexibility of law. Not subjective application, but the knowledge that the perception of a law changes, as the definitions of words change, and that words are not divine edict, but the cocoon of an idea. How metamorphose works in law and language is at least as interesting as how it works in nature. Holmes knew that.

Eisenhower put Earl Warren on the court, who became the Great Satan to conservatives. But Warren had been a very conservative Governor of California, and had led the move to incarcerate Japanese Americans during the Second World War. Even today, Justices Souter and Kennedy are anathema to conservatives because, although Republican hires, they’re too middle of the road for neo-cons. Which is to say, Roberts is as likely to be a surprise as an obedient cog in Scalia’s reactionary machine.

But this, of course, is what the last two presidential elections have been about, isn’t it? This seat of O’Connor’s and soon that of the Chief Justice, who does not look or sound well regardless of what he’s saying. And ranking liberal John Paul Stevens is four years older than Rehnquist. Bush could get to appoint three or more Justices. So if Roberts turns out to be Clarence Thomas in whiteface, women will lose the right to abortion. When that happens, it won’t be because reactionaries have won, but because Democrats and progressives lost it. This is payback in spades for alleged progressives refusing to compromise, and demanding instant political gratification or nothing in recent elections. No difference between Bush, Gore, and Kerry? Really..... We won’t know until it comes up for a vote, but John Roberts may be the illustrative example of the difference that immediately will affect people’s lives. Of course, the important thing is that you can console yourself that you made a statement when you voted for Nader. How could you possibly have voted for Gore or Kerry when neither had a position paper on the ecological effects of Saran Wrap in the Amazon Basin, or deodorant in the Arctic? That’s just as important as a woman’s right to an abortion here, isn’t it?

Do you have a recording of your ringing statement to console you in the years to come if needed? Maybe a copy of an inspiring Nader speech? Hey, the nomination of John Roberts is as due to your inactions and actions as it is to Karl Rove’s ministrations. If we lose Roe, you ought to get new bumper stickers: I Put Roberts in the Supremes! That can cover your Nader stickers and Chomsky quotes when you drive by weekly marches of Save America victory celebrations here in Boulder.

But I get ahead of myself; Roberts is only nominated. No need to panic yet. I’ll let you know.