Wednesday, May 2, 2007


At first blush, President Bush’s standing among conservatives should have brightened last week with the Supreme Court 5 to 4 victory over partial birth abortion. Pro-life Republicans were quick to point out that at long last a light is seen at the end of the tunnel thanks to Bush’s two justices—John Roberts and Sam Alito—and the return “home” of Anthony Kennedy. Pro-aborts tend to wail at the decision and prophesy that the end of abortion rights may come if a Republican is elected president.

Pro-life Republican conservatives cite these facts: (a) The ban, they say, is a victory for pro-life; the horrific nature of partial birth abortion which has been recognized by more than 60% of the American people has caused the ban that says this repulsive method cannot be used to end the life of a baby; (b) It is a victory for the legislative process which secured a bipartisan majority for the ban, extended through five different Congresses, survived two presidential vetoes by Bill Clinton and now challenges from several federal courts including a previous Supreme Court ruling; (c) The ban is unambiguously the law of the land as determined by Congress not activist judges, in contrast with the original Roe v. Wade decision which took the matter out of the hands of the states and made it a court ruling.

But there are other pro-lifers, the literalists, those who examine the words of the ban that give sanction to the continued practice of abortion and are still offended. They see no value in the decision at all but for the most part they are more grounded in legal niceties rather than the decision’s political nuances. They include constitutional authority Charles Rice and former Jurist Robert Bork. Both men are renowned legal intellectuals but neither are not known for understanding political atmospherics—least of all Bork, some conservatives say, who damaged his confirmation hearings by playing into the clever hands of Sen. Joseph Biden who twisted him into a pretzel based on some of his colorful but theoretical law school lectures, with Biden painting a portrait of the jurist as an 19th century social reactionary .

Another pessimist on the value of the decision would be Paul Likoudis, the influential news editor of The Wanderer, the oldest national Catholic weekly. (Disclosure: This writer often appears in the newspaper as a political analyst). Likoudis, Bork and Rice say that (a) the ruling may not prevent one partial birth abortion, declaring that both states and the feds can enact future legislation that could ordain restrictions on the surgical procedure that are not unconstitutional; (b) such a ban is so exceedingly narrow that (c) there is no likelihood abortion will be made illegal (citing Anthony Kennedy’s failure to comment on that possibility in his majority decision; Justices Antonin Scalia and Clarence Thomas did, but Chief Justice John Roberts didn’t).

The difference seems to lie in political analysis rather than literal examination of the decision. Many pro-Republican and conservative activists see light at the end of the tunnel. Some literalists believe too much has been made of the decision by both pro-life and pro-abort camps.

Pro-lifers are sprinkled through all four major groups within the conservative movement but principally center in their own social category where life is unalloyed by other issues. Three conservative groups have been severely critical of Bush.

Here are three groups that have been condemnatory of Bush on major conservative policies:

1. Nationalists, Those who hearken back to the hands-off foreign policies espoused by Ohio’s Senator Robert A. Taft, have been fighting globally-centered presidents since Theodore Roosevelt. TR’s immediate successors were nationalists, those devoted to avoiding what George Washington had originally termed (in an address written by the first ghost-writer, Alexander Hamilton) “foreign entanglements.” William Howard Taft, rren Harding, Calvin Coolidge and, to a lesser degree, Herbert Hoover believed that foreign policies should emphasize non-involvement in wars or disputes unless they impact directly on the peace and liberty of the United States.

However they were by no means isolationists in the pejorative sense of the term. William Howard Taft endorsed “dollar diplomacy,” encouraging U. S. bankers to invest in China and Europe; Harding led a 4-nation pact to encourage global disarmament; Coolidge pushing an idealistic Kellogg-Briand peace pact to “outlaw war” which was signed by 47 nations; and Hoover the London-Naval Treaty of 1930 which further limited arms. But in the Chicago GOP convention of 1952—which I attended as a Taft supporter--internationalists backing Dwight Eisenhower defeated Taft. From that time on, internationalists ran the party including when Barry Goldwater was the nominee in 1964, supporting expanded foreign aid and mutual security pacts.

Internationalism flourished under Richard M. Nixon, Gerald Ford, Ronald Reagan, George H. W. Bush and George W. Bush although the insurgent candidacy of Patrick Buchanan tried unsuccessfully to resurrect the old nationalist cause. But following 9/11, George W. Bush raised the ante with the doctrine of “preventive strikes.” It argued that the strikes were warranted against any nation perceived to be a threat. The Congress approved Bush’s request to make a preemptive unilateral strike against Afghanistan and Iraq. Disappointments in the Iraq War disenchanted many conservatives and is the cause of a major criticism among some of them—Buchanan and others of the nationalist school. There are pro-lifers in this group but for the most part, some analysts believe, nationalism dominates their thinking.

2. Anti-big spending, pro-tax cut, anti-big government conservatives and libertarians. They distrust Bush’s “compassionate conservatism” and fought the expanded federal education program “No Child Left Behind” which gave children the right to transfer out of unsafe or under-performing schools but which was also the most sweeping education bill since the LBJ “Great Society” days of 1965. They were horrified at the “Prescription Drug Improvement and Modernization Act of 2003”—a gigantic entitlement which Bush crafted with the aid of the American Association of Retired People (AARP). In addition the Republican Congress first elected in 1994 began as a cause, became a business and concluded in some cases as a racket. It gave a bad name to the phrase “spending like drunken sailors.” None of its over-expenditures were vetoed by Bush. The only subset of libertarians who have been pleased with him are the 2nd amendment people, supportive of his record as an opponent of unnecessary gun control. Likewise, pro-lifers are included in this group but many libertarians espouse a “hands-off” stand on this issue.

3. Anti-illegal immigration movement conservatives and anti-free trade activists. They have been appalled at Bush’s initial lenience at over-the-border forays by illegals and his support of a guest-worker program. He has called border Minute Men “vigilantes” and seems to favor some laxity in immigration control which in his words “honors our proud history as a nation of immigrants.” He has since come around to support more border security but embraces a “guest worker” program that rankles some quarters of the political right. In addition, his libertarianism holds that unrestricted free trade benefits the economy far more than trade protectionism which pleases big business because they insist cheaper labor and out-sourcing has boosted the economy to an unparalleled degree—higher in productivity than Clinton’s. But big business is not a political movement. It kicks in cash but to both parties. There are pro-lifers in this group but immigration is a robust movement group that stands on its own.

The sole group that has been consistently loyal to the president and to whom he has been consistently supportive (and for whom he cast the only veto of his career) is the

4. Pro-life, pro-family movement composed largely of conservative Catholics and evangelical Protestants. In terms of campaign activities, this group numbering tens of millions along with the pro-gun rights libertarians from the above classification are easily more influential and better organized than gay rights people and feminists are to Democrats (and can probably be compared to African Americans in voting strength). This group identifies almost exclusively with the Republican party since the Democratic party officially endorses abortion.

This is the group that is generally exhilarated because of the High Court decision last week. This writer can be included in this category. We believe the victory was caused by two significant Bush appointees to the Court—Chief Justice John Roberts and Associate Justice Sam Alito but couldn’t have won without the “coming home” of prodigal Anthony Kennedy. All are Catholic.

(The influential Wanderer now marking its 143rd straight year of publication has supporters in all four groups…nationalists, anti-liberal immigration…pro-tax cut, anti-big government and pro-life-pro-family movement…but has been exceedingly critical of Bush on grounds embraced by the first three groups and now has added criticism from the fourth).

The pro-life, pro-family group generally savors the anti-partial birth abortion ban as salutary but believes it is not the whole ballgame. It hopes for the possibility that five-members can hang together in the future.


Why, with three pro-life Republican presidents appointing Supreme Court Justices, has it taken this long to even begin to make a dent in the pro-abort stance of the Court? Because some appointments made by Ronald Reagan and George H. W. Bush were, putting it mildly, flawed.

Reagan may be a conservative hero but there is little doubt that in appointing Episcopalian Sandra Day O’Connor he either winked at her pro-abort stand or was misled by Mike Deaver, his longtime p. r. guru, man-servant and family retainer whose influence centered on his being acceptable to Nancy Reagan, a nondescript Hollywood pragmatist with wafer-thin philosophy, caring only for her beloved husband’s political welfare as an absolute.

I interviewed Deaver some years ago when he came to speak at my DePaul University seminar (after he happily told me in years, months, weeks and days how long he, as an alcoholic, had been sober). He frankly acknowledged that he sold Reagan on the news value of naming the first woman to the court rather than on any dispassionate analysis of her service as Arizona state judge and majority leader of the state Senate. Nancy Reagan was hovering in the background urging O’Connor because of the women’s vote. Deaver and Nancy Reagan couldn’t care less about jurisprudence: they wanted Reagan to get credit for naming the first woman.

Accordingly, O’Connor demurely kept her lip buttoned up on abortion, sailing through the Senate committee confirmation process. She was a stealth decoy, an economic conservative from Arizona, a friend of Barry Goldwater, but as Deaver and Nancy Reagan well knew a social pragmatist. Not all conservatives were fooled by the O’Connor appointment. Jerry Falwell declared “all Christians should line up to oppose her nomination” because it was common knowledge that as a state lawmaker she was a pro-abort. In anger, Goldwater, then in his regular late-afternoon cups which he shared in convivial sessions with Sen. Daniel Patrick Moynihan (they were called the Jack Daniels-Jim Beam twins) lashed back. Goldwater, who had been a lonely widower, was once pro-life but, as result of a second marriage to a much younger woman, became a pro-abort and pro-gay rights supporter.

Slurring, the conservative icon senator responded, “All Christians should line up to kick Jerry Falwell’s [posterior].” He received sustained applause from the newly worshipful New York Times to which the old man in his hazy dotage and his wife had become particularly fond.

On his second Court appointment—of Anthony Kennedy who represented himself as a pro-lifer—Reagan, stung by the O’Connor appointment, was frankly betrayed. The vacancy was caused by the retirement of pro-abort Lewis Powell. Reagan sent the name of pro-lifer Robert Bork to the Hill but the Democratic Senate rejected him. Ostensible reason: Bork had a paper trail that was 10 miles in length, carrying his views on everything including old-fashioned values, purported male sexism and other non-legal topics. Then Reagan sent up the name of pro-lifer Douglas Ginsburg, younger than Bork, less voluble. But fearsome liberal scrutiny turned up that he smoked marijuana as a law professor.

Humiliated, Reagan wanted to end the controversy. He named Anthony Kennedy, a Catholic who told the president he was in fact pro-life. Shortly after he got on the Court, Kennedy fell victim to the blandishments of Georgetown cocktail party liberals who gushed that they were sure he would not be an ideologue. He strayed and was rewarded with great praise as a thoughtful legal giant by the New York Times’ Supreme Court reporter Linda Greenhouse. This is known in Washington as “the Greenhouse effect”—the kind of ego massaging that ruined one-time conservative Harry Blackmun (of whom Greenhouse has written an gushing biography).

Striking out with O’Connor and bunting feebly with Kennedy, Reagan hit his high-water-mark with the naming of Catholic Antonin Scalia, a foremost conservative scholar and pro-lifer to replace William Rehnquist as associate while moving the pro-life Rehnquist to chief justice. When Reagan left office to be succeeded by George H. W. Bush, pro-lifers winced since Bush began his public career as a committed advocate of public funding for population control, earning the nickname “Rubber George” when he was in the House.

But Bush had turned completely around overnight from pro-abort to pro-life when he became running-mate to Reagan and despite widespread skepticism he kept the bargain he made with Reagan. Pro-lifers disbelieved it at first but once he came to the presidency, he did nobly in naming pro-lifers to the lesser federal bench, with better appointments than made by Reagan, at least in Reagan’s early first term. With his first Supreme Court pick, Bush named an outstanding jurist, one who in conservative legal circles is regarded as more steady than even Scalia. It was of once-Catholic, then evangelical, , now Catholic again Clarence Thomas who famously differs from Scalia on nuance. Scalia has hinted that a jurist should reflect a popular consensus rather than absolutes. Thomas hangs tough with absolutes among which life is first. He has been by all odds the most conservative pro-lifer on the Court. Liberals try to humiliate him by saying he follows Scalia’s lead but not so: Thomas follows his own drummer.

Where Bush, Sr. erred on pro-life was to trust his pro-life chief of staff, Catholic John Sununu who in turn was gulled by one whom he thought was an ally and friend. Sununu, a well-meaning but bumbling, a brilliant engineer but all thumbs in politics. A former New Hampshire governor often wrong but never in doubt, Sununu leapt at the chance of replacing retiring liberal radical jurist Catholic William Brennan. (Brennan had been named to the Court through a wildly inept process. As an appellate judge, he was asked to read the address of an ill conservative jurist at a bar association. Abortion wasn’t the issue then, of course, but Attorney General Herbert Brownell was told that an Irish Catholic made a great speech embodying conservative values and so ineptitude reigned as the Ike people picked Brennan; Eisenhower hit the ceiling later for being responsible for naming both Earl Warren, who became an instant liberal, and Brennan who always was one).

Now that Brennan was leaving for which Sununu breathed a Deo gratias, Sununu remembered the long tedious inquisition the Democrats gave Robert Bork because of his lengthy paper trail. This time Sununu wanted someone who was loyal but had no paper trail. Who to get? In one of the catastrophic mistakes of modern jurisprudential history, Sununu asked a close friend who had been an ally in New Hampshire politics, an economic conservative, indeed a libertarian, who had served as state attorney general when Sununu was governor.

Privately former U. S. Senator Warren Rudman had a pro-abortion axe to grind. Sununu knew only that Rudman understood the Senate. So he asked for a recommendation, specifying that the candidate should not have written or spoken controversially. Rudman, a wily secret non-Christian, had been the nearest thing to a double-agent the Senate saw since the days of Wayne Morse who slipped into the GOP in Oregon and got elected as a supporter of Ike.

After outraging his conservative fellows, Morse at least had the integrity to switch parties in mid-term from Republican to independent (where he voted straight Democratic)_and ultimately Democratic. Rudman saw no advantage in leaving the GOP when by staying as a liberal plant he could deliciously mislead. He recommended to Sununu the man who succeeded him as New Hampshire attorney general, David Souter. Souter, he said truthfully, had no paper trail.

Sure enough, Souter had no paper trail: in fact it was said of him that he could walk hip-deep in the snows of New Hampshire and leave no footprints. A forgettable nerd, Souter is a classic example of someone you can take a picture of that doesn’t turn out. Dull as a Buddhist monk, unmarried, he lived in the New Hampshire woods in a falling-down farm house with his mother, drove—and still drives—a rattletrap vintage Ford to work, carrying a sack for his lunch (identical to what she originally packed for him in grade school) consisting of rice cakes and an apple.

There is something more duplicitous in Souter’s appointment than in that of other Justices who turn liberal. Rudman sold him to Sununu for his supposed conservatism, as state attorney general, associate jusice of the Superior Court of New Hampshire and associate justice of the state Supreme Court. In this posts he voted properly conservative. In fact at Rudman’s earlier behest, Sununu saw that Bush named Souter to the U. S. Court of Appeals in 1990. Again, his jurisprudence was conservative.

So at Sununu’s recommendation thanks to Rudman, Bush named the shy bachelor rustic to the Supreme Court in 1990. So uncontroversial was he that he was confirmed 90 to 9. From 1990 to `93 he was conservative-leaning; he and Scalia voted together 85% of the time. The turning point came with Planned Parenthood v. Casey in 1992 when Souter leapt over the back fence like a bee-stung colt and re-asserted Roe’s contention that abortion is a right protected by the Constitution. Thereafter Souter has been on the far-left of the Court, even voting in dissent from the majority on Bush v. Gore to decide the presidency. Sununu and Rudman are not close anymore. Rudman has gone on to chart liberal history as head of a Democratic front group called the “Concord Coalition” which wants to raise your taxes and not cut government.

The Democratic Senate confirmed Souter and he became second only to Brennan as a knee-jerk extreme liberal on everything, supporting statist opinions up and down the firmament including pro-abortion. Moreover he became the patron saint of eminent domain, sanctifying that any community can, if it wishes, confiscate private property for its own ends. Two years ago there was an attempt by angry residents of his New Hampshire town to “condemn” his rundown property and take it over, evidence of community scorn for this recluse.

In Supreme Court history the Souter appointment is regarded as the greatest example of bait-and-switch and deceptive packaging in modern times since Dwight Eisenhower goofed on naming William Brennan. But the point of this dismal history is this: Of all the pro-life presidents, Reagan and George H. W. Bush, only George W. Bush has scored a 100 percent batting average in naming social conservatives to the Supreme Court—two men with many years to devote to service on the Court.

Now with Anthony Kennedy conceivably coming “home” to his original intellectual moorings—together with Bush appointees Roberts and Alito—the issue of abortion is of viable political life once again, as the nation begins to visualize the next presidential election. Kennedy cites what he calls “a premise central” to the Court’s earlier conclusion that “the government has a legitimate and substantial interest in preserving and promoting fetal life.” He has declared the federal ban on partial birth abortion does not create “a substantial obstacle” since the law doesn’t ban the most commonly used method of late-term abortion known as dilation and extraction. But also Kennedy opens the gate for further regulation of abortion by citing an earlier decision that found “government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”

The most significant optimistic commentary on Kennedy’s majority decision came from Terry Eastland, a former high official of the Justice Department under Ed Meese and a legal scholar. Eastland wrote last week that “a Court of still different composition—with more Republican appointees—might finally withdraw the judiciary from policymaking in this deeply controversial area and let the people decide what to do about it through their duly elected representatives.” In legal language that is exciting.

All groups understand that even if Bush has another Supreme Court appointment to fill, a Democratic Senate makes it exceedingly unlikely that a pro-lifer would be confirmed. Additionally, all the groups recognize that election of a Democratic president would end the possibility of a pro-lifer being appointed. In addition the crystal ball is cloudy indeed with some aspects of the Republican nominees. Rudy Giuliani, the former New York mayor, is a pro-abort who has recently said that while he would name “strict constructionists,” he would use that designation to apply to pro-aborts as well as pro-lifers. This makes him toxic for pro-lifers to support. Mitt Romney, John McCain and all the other announced candidates can be expected to name pro-lifers to the Court. Former Tennessee senator Fred Thompson is a pro-lifer but there was discouraging news the other day when news services reported that Mike Deaver, Reagan’s old public relations aide, is getting behind Thompson.

Because Deaver had great experience working the media for another actor, it is thought in some quarters he would have great influence with Thompson—in which case you could kiss a pro-life appointment to the Court goodbye.

What has thrilled many pro-lifers is the understanding that with all his faults, George W. Bush has a 100% record for pro-life, a major plank in the Republican platform. But at week’s end, while journalist Pat Buchanan, a Bush-dissenting economic nationalist, anti-immigration crusader and anti-free trader came through with a thank-you, the question remained: will traditional conservatives who oppose him on foreign policy, domestic spending and immigration, , grant him grudging respect for changing the Court to where an important life issue won 5 to 4? With the prospect of even overturning Roe?

It is clear that the answer is no.

1 comment:

  1. 1) Let us not forget that Clarence Thomas was confirmed by a Senate that had both a stronger Democratic majority and a larger margin of pro-choice Republicans.

    2) Clarence Thomas was never an Evangelical. He shifted from his Catholic upbringing to the Episcopal Church on account of marital irregularities, then came back to the Catholic Church after attending the ordination of Scalia's son.

    3) It is worth recalling that the 2000 election was settled by SCOTUS on December 12th, Feast of Our Lady of Guadalupe, Patroness of the Unborn. In light of this, I remain hopeful.