In the confirmation hearings for Judge Roberts, many Senators have conducted themselves in exactly the way pro-life leaders said they would. Abortion, the issue that won’t go away, was again at the center of their concerns. “Respect for precedent” was a code word for “Respect for Roe vs. Wade,” and concerns about “privacy” were really concerns about abortion. When Senator Patrick Leahy of Vermont declared that he would vote for Judge Roberts, despite many reasons that would make him vote otherwise, he explained it was because he thinks Judge Roberts will not take away a woman’s “right to choose.”
What Judge Roberts will do as Chief Justice Roberts, of course, is yet to be determined.
But we should pause for a moment to reflect on the irony of Senators and other leaders arguing in public about whether “Roe” is “settled law.” The frequency of the question answers the question in the negative, because if it were “settled,” it would hardly be the center of such constant controversy. Roe vs. Wade itself, in fact, was on trial in the US Senate a few months ago when Senator Sam Brownback of Kansas led hearings on the decision and its impact on America. The plaintiff in the case, Norma McCorvey (“Jane Roe”), is now pro-life and testified against Roe at the hearings. (I was privileged to receive her into the Catholic Church in 1998.)
Now, of course, in anticipation of the process to fill the second vacancy on the Court, some voices are calling for a more “moderate” nominee, and demanding that the President keep “balance” on the Court and not move it to the “right.” Again, it’s about abortion, and it reminds me of the words of Justice Antonin Scalia: “Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?”
There is no obligation, nor is it even appropriate, to seek to maintain the current configuration of opinions on the Court. That very effort contradicts what the Court is all about. It’s not a legislature, and judges are not supposed to be politicians with platforms.
But in any case, how can anyone consider support for abortion “moderate,” “mainstream,” or even reasonable? Roe allowed abortion throughout all nine months of pregnancy. Abortionist Martin Haskell used these words to describe a legal abortion procedure, under oath:
"When you're doing a dismemberment D&E usually the last part to be removed is the skull itself and it's floating free inside the uterine cavity…like a ping-pong ball floating around … Finally … a nip is made out of some area of the skull that allows it to start to decompress. And then once that happens typically the skull is brought out in fragments rather than as a unified piece, the result being that sharp bony edges of the skull are exposed” (US District Court for the Western District of Wisconsin, Case No. 98-C-0305-S).