While listening to, and reading about, the Roberts’ confirmation hearings last week, I began to have a revelation: maybe conservative leaders, despite their rhetoric, don’t really want Roe overturned. And maybe they secretly want to ensure that President Bush nominates justices who aren’t likely to overturn Roe.
It’s been an article of faith, literally and figuratively, for the religious right and social conservatives that Roe was (and still is) an instance of immoral, and blatant, judicial activism. Overturning Roe has been the Holy Grail for many members of this movement. They want to revert to the status quo ante, with legislatures invested with the responsibility and power and authority to decide whether abortion is legal or not, and if so, under what circumstances.
But what if this actually occurred? What if, with the impending appointment of Roberts and then Justice O’Connor’s replacement, the court does overturn Roe (or most of it, anyway)? Legislatures would suddenly be the field of debate; and it would take the issue off the table for federal elections (Congress and President). With the issue front and center before the electorate, moderates would be forced to make hard decisions or avoid seeing what has become a fundamental right for many go away; they would no longer get a pass.
And this would be a disaster for the conservative movement. Their federal candidates could no longer use this issue to rally the base. And, the majority of Americans who support the right to have an abortion, at least in some form, would likely vote for candidates at the state level likely to uphold this right. And given the stranglehold the extreme right now has on the Republican party, we can be assured that pro-choice candidates would likely be Democrats.
I suspect because of all this, key Republican leaders want to make sure they nominate candidates who appear sufficiently conservative to their base on the right, but who, in the end, aren’t really likely to vote to overturn Roe. They may, in fact, have a litmus test on this issue, cloaked in the language of "stare decisis." Yes, this is a cynical view. But, there is reason for cynicism given the discordance between the Bush administrations leadership on fiscal matters, the size of government, and their rhetoric.
And given how the issue of abortion polls, this would probably be