Will Obama Appoint The Justice To Overturn Roe v. Wade?

President Eisenhower once famously said that his nomination of Earl Warren to be Chief Justice of the U.S. Supreme Court was "the biggest damned-fool mistake I ever made." Warren (as well as his associate, Justice Brennan, another Eisenhower appointment) turned out to be far more activist than Eisenhower had expected, such as when the Warren Court recognized far more expansive constitutional rights for criminal defendants than previously understood.

Warren is one of many members of the Supreme Court who surprised the Republican presidents who appointed them. In fact, the majority of the Court in Roe v. Wade were appointed by Republican presidents. Ironically, given that Roe has become such a cardinal of faith for the Democratic party, one of the two dissenters in the case was a Democrat who had been appointed by President Kennedy -- Justice Byron S. White.

Here is a excerpt from Wikipedia regarding Justice White's dissent:

Justice White wrote:

"I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court."

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Now, what does all of this have to do with President-elect Obama?

A column of Russ Pulliam published yesterday in The Indianapolis Star ruminates on what we might expect from the Obama administration, based upon comments from Senator Evan Bayh. Pulliam suggests that Obama surprisingly may try to govern from the center:

Almost always the man in the political middle, Sen. Evan Bayh hopes he can swing President-elect Barack Obama away from left-wing temptations.

Having spent two hours with Obama for a vice presidential interview this summer, Bayh came away thinking the incoming president will look for what works. Yet Bayh knows the liberal wing of his party in Congress may try to pull the new administration leftward.
"He's more of a pragmatist," Bayh said in an Election Day interview with the Star Editorial Board.

When Obama ran the Harvard Law School review, Bayh added, "He picked three members of the Federalist (conservative) Society to be masthead editors." Obama did that not necessarily to make all sides happy, but to have a good publication.

Obama appoints Federalist Society members to the bench? It just might happen, if Obama (like the predecessor he admires, President Kennedy) chooses judges based on merit rather than an ideological litmus test. Granted, not all Federalist Society members support overturning Roe. But Bayh's comments suggest that it is entirely possible that Obama's appointments to the bench will produce judicial surprises to rival what President Eisenhower experienced.
Please note: The postings of "G. Morris", written by John K. Bush and which end in 2016, stated his views as of the dates of posting and should not be understood as current assertions of his views. The postings, which have not been altered since they came to an end, remain on this blog to preserve the historical record. In 2017, Mr. Bush took a position that precludes further public political comments or endorsements. He will no longer be contributing to this blog.