Judicial House of Cards Is in Trouble

By Kenneth Concannon
Special to the HERALD
(From the issue of 10/31/02)

For the past 30 years the abortion movement and the industry that it created has survived in a judicial shell protected by a house of cards. Beginning with the Supreme Court's landmark Roe v. Wade and Doe v. Bolton decisions nearly 30 years ago, the so-called "constitutional right" to kill the unborn has been fostered and protected by judicial decisions that run contrary to the moral fiber of most Americans. Despite enormous grass-roots opposition to abortion, the abortion industry has managed to keep just enough pro-abortion judges in the federal judiciary to keep the house of cards from tumbling.

The linchpin of the abortion strategy ever since Roe v. Wade has been control of the Senate Judiciary Committee. In our system of government the president proposes nominees for the federal courts and the U. S. Senate accepts or rejects the president's nominees by vote of the full Senate following the Judiciary Committee's review of the nominees to determine their worthiness for consideration by the Senate. Before a nominee gets to be considered by the full Senate, his or her nomination must first pass scrutiny by the Judiciary Committee. Control of who gets appointed to the Judiciary Committee, therefore, ultimately determines the prevailing view of the federal judiciary on matters related to abortion.

Committee appointments within the Senate are determined by the Senate leadership — the Majority Leader, et al — and as this country's two major political parties have become more polarized on issues related to abortion, the Judiciary Committee's attitude toward pro-abortion or pro-life nominees is determined by the Senate's majority party. For most of the past 30 years the Senate has been in the control of the Democratic Party, which has cast its lot with the abortion industry, and the White House has been occupied by the Republican Party, which has endorsed the pro-life view. That situation was reversed during the Clinton years, but the effect was the same.

The opposing abortion views of the president (who nominates) and the Senate (which confirms) on the abortion issue created an abortion battleground within the Senate Judiciary Committee where the infighting has become especially intense. Democrats control the Senate by only one vote and the Senate Judiciary Committee, consequently, by one vote. There are 10 Democrats on the Committee and nine Republicans.

National Abortion and Reproductive Rights Action League (NARAL) ratings of the 10 Democrats and nine Republicans illustrate the ideological difference between the opposing sides. The average NARAL rating of the 10 Democrats is 95 percent, meaning that the 10 Democrats on this committee vote the pro-abortion NARAL line 95 percent of the time. The average NARAL rating of the committee's nine Republican members is only 17 percent.

What should be of interest and concern to Catholics is the fact that seven of the 19 committee members are Catholic, but only two of them vote on the pro-life side. The other five Catholics — Senators Pat Leahy (Committee Chairman) from Vermont, Ted Kennedy from Massachusetts, Joe Biden from Delaware, Dick Durbin from Illinois, and Maria Cantwell from Washington — constitute half the bulwark against pro-life judicial nominees.

In the past, rejection of a nominee by the Senate Judiciary Committee usually resulted from personal or judicial qualification problems disclosed in the FBI investigation of the individual or the rating assigned that individual by the American Bar Association. Following the Roe and Doe decisions, however — and the less-than-enthusiastic support of those decisions by many constitutional scholars and much of the judicial community — ideology became a factor in the nomination process.

But until very recently ideological concern (specifically, the nominee's view of Roe and Doe) was limited to nominations to the Supreme Court. With the advent of George W. Bush to the White House, however, things have changed. The leaders of the abortion industry consider him to be very "anti-choice" (their word), and with aging judges on the Supreme Court and a predominantly Republican/"anti-choice" Congress, they recognize that their house of cards has become very shaky.

They fear that the Bush administration is attempting to pack the federal judiciary with "anti-choice" judges, and they have called upon their allies in the Senate — chief among them Senate Majority Leader Tom Daschle, another pro-choice Catholic — to block that effort. Not all Democratic senators vote the pro-abortion line every time, so with only a one-vote margin within the Judiciary Committee to guarantee rejection of potentially pro-life judges, Daschle and committee chairman Leahy had to pack the Democratic side of the committee with Senators who would never disappoint the abortion lobby.

Sadly, half that group call themselves Catholic.

The full court press has thus far succeeded in rejecting an alarming number of Bush nominees, among them U.S. District Judge Charles Pickering of Mississippi and Texas Supreme Court Justice Priscilla Owen, both of whom were rejected for their supposedly non-mainstream, conservative views. Both of them were rejected by a one vote majority. Currently under fire and likely to be rejected by the same one-vote majority are University of Utah Professor Michael McConnell, an outspoken advocate of the pro-life position, and the distinguished Hispanic lawyer Miguel Estrada. Accused of non-mainstream thinking, Estrada has yet to prove that he is not pro-life.

Concannon is a freelance writer from Manassas.

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