<Andy Rooney voice>Did ya ever notice that, for all the fuss about Supreme Court justices appointed by Republicans, Roe vs. Wade still stands?</Andy Rooney voice>
Benjamin Wittes, an editorial writer for The Washington Post, raised this point in the January issue of The Atlantic:
Republicans have put seven of the nine current justices on the Supreme Court -- and they still have only one more anti-abortion vote than they had in 1973, when the decision came down 7 to 2. Where reproductive rights are concerned, the bark of a conservative nominee is frequently worse than his bite -- as three justices nominated by Ronald Reagan or George H.W. Bush proved in 1992, when, in Planned Parenthood v. Casey, they voted that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."
"I generally favor permissive abortion laws," Wittes writes, but in his essay "Letting Go of Roe" (subscription required), he argues that the long-term cause of abortion rights may actually be better off if Roe were to fall.
Wittes continued in this contrarian groove in the April Atlantic, playfully wondering if the forthcoming judicial confirmation ordeal is more trouble than it's worth:
Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the confirmation process is going to be an ugly spectacle. Democrats will wax indignant about a "rollback" of the hard-won gains of the civil-rights movement -- indeed, of our fundamental rights more generally. Republicans will whip themselves into a frenzy over the impropriety of opposing nominees because of their "ideology." Some poor nominee will have his or her name dragged through the mud. If the Democrats successfully filibuster, we may have to repeat the whole process with another candidate. And after all the fuss, Bush will get what he wants anyway: a conservative chief justice. Why don't we dispense with the song and dance?
(Wittes helpfully writes that he's "almost" serious with that last sentence.)
Amid breathless headlines like Newsweek's "The Holy War Begins: Bush must choose between the big tent or the revival tent" (paging the Rev. Elmer Gantry), let's step back, take some deep breaths and read another paragraph from Wittes:
President Bush knows that he'll have a fight on his hands if he sends up a die-hard right-winger. And although it's impossible to divine from the proceedings how a given justice will evolve over time, or what issues will define his tenure, the president's awareness of the possibility of Senate rejection encourages accommodation and consensus. The major value of the Senate's proceedings, in other words, lies not in anything we might learn from them -- which, if history is any guide, will be negligible -- but in the president's knowledge that they happen at all.