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Roe Abortion Decision Fueled Supreme Court Confirmation Wars

Nov. 30, 2021, 9:45 AM

Justice John Paul Stevens didn’t face a single question about abortion at his 1975 Senate confirmation hearing two years after the Supreme Court’s landmark Roe v. Wade decision.

At Sandra Day O’Connor 1981 confirmation hearing, abortion came up repeatedly, prompting Sen. Bob Dole (R-Kansas) to lament, “we have moved a long way in six years to say that if you are not exactly correct on this one issue you should not sit on the Supreme Court.”

Abortion became a focus at modern Supreme Court confirmations as it rose to prominence as a political wedge. Today, it’s as unresolved as it was four decades ago even as other hot-button issues have come and gone.

“One of the things that makes the abortion issue stand out at the hearings, is that it has been a contested issue for so long,” said Lori Ringhand, a professor at the University of Georgia School of Law who studies the confirmation process.

The Supreme Court will reconsider the Roe decision, which established abortion as a constitutional right, on Wednesday as it takes up Mississippi’s ban on abortion after 15 weeks of pregnancy in Dobbs v. Jackson Women’s Health Organization.

Both sides in the debate have emphasized just how much is at stake with every Supreme Court vacancy, warning that the future of abortion hinges on the fate of each nominee. Since Stevens’ confirmation, 18 men and women have been nominated to a seat on the Supreme Court, and 13 were put forward by Republican presidents.

Democrats raised the spectre of a return to back-alley abortions in their successful 1987 fight against the nomination of Robert Bork—and Republican nominees since.

Conservatives disappointed in how O’Connor and two other Republican nominees, Anthony Kennedy and David Souter, ultimately voted on abortion, vowed they wouldn’t make the same mistakes again in advocating for a potential selection.

Lower Profile

Yet at the time Gerald Ford selected Stevens, the anti-abortion movement “didn’t really care about Supreme Court nominations,” said Mary Ziegler, a professor at Florida State University College of Law who focuses on the history of reproductive rights.

That changed during the 1980s as Ronald Reagan staked out his opposition to abortion in most cases. “Once Reagan sort of made it a highlight of his presidency, that really starts reshaping how the parties are organized around this issue,” said Keith Whittington, a politics professor at Princeton.

O’Connor was the first to answer questions about abortion after Roe. In response to one of the first questions during her hearing from then-Senate Judiciary Chair Strom Thurmond (R-S.C.), the Reagan nominee spoke plainly about her own views on abortion.

“I would like to say that my own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise,” said O’Connor, who was confirmed 99-0. “The subject of abortion is a valid one, in my view, for legislative action subject to any constitutional restraints or limitations.”

It wasn’t until 1987 with Reagan’s nomination of Bork that abortion became a central line of attack. That intensity was partially because Bork would have replaced the court’s swing vote, Justice Lewis Powell.

“Whenever the open seat has the potential to move the vote count on Roe, Casey, and abortion law generally, I think that is when it becomes most intense at the hearings,” Ringhand said. Planned Parenthood v. Casey preserved the core holding of Roe in 1992.

Within minutes of Bork’s nomination, Sen. Ted Kennedy (D-Mass.), then a member of the Judiciary Committee, took to the Senate floor to say “Robert Bork’s America” would be, among other things, “a land in which women would be forced into back‐alley abortions.” Kennedy reiterated his criticisms during the hearings for Bork, who was ultimately defeated 58-42.

“We’ve become a little more abortion-focused in our recent confirmation hearings,” Whittington said. Now, abortion is more of a “centerpiece of a lot of opposition to conservative judges, rather than just sort of being one among many potential objections to conservative judges,” he said.

Presidents find their nominees without sufficient track records on abortion can come under scrutiny even from advocates from within their own ranks.

George W. Bush ultimately withdrew the 2005 nomination of Harriet Miers in part due to conservative fears about how she might rule on abortion. Four years later, Nancy Northup, president of the Center for Reproductive Rights at the time, told ABC News that Sonia Sotomayor’s views on abortion weren’t clear and it was “important that during confirmation hearings, that senators explore her view.”

During the 2016 presidential campaign, Donald Trump tried assuring conservative voters he’d deliver the kind of results they wanted when it came to abortion. He said he would put “pro-life justices on the court,” which would effectively overturn Roe. That statement became a target for abortion rights advocates during the confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They all faced questions about Roe and abortion at their hearings.

Indirect Questions

Mindful of Bork’s experience, in which candor about his views only worked against him, recent nominees have been circumspect in their answers about abortion and other contentious legal questions.

Senators often resort to using proxy issues to probe nominees about how they might approach abortion cases without asking their views directly. For example, the doctrine of precedent called “stare decisis,” and so-called “super precedents” which are cases that are viewed as not subject to being overturned, have been used by senators to gauge how nominees feel about abortion as an issue.

Those issues present an “awkwardness” for nominees, Whittington said. “Everybody recognizes there are times in which precedents ought to be overturned, and so and so no one really wants to stick out the position that you should never overturn a precedent,” he said.

That came up most recently at the confirmation hearings for Barrett, who wrote about the topic as a law professor.

Sen. Amy Klobuchar (D-Minn.) cited Barrett’s past writings in asking her whether Roe should be included under the super-precedent label with cases like Brown v. Board of Education, the landmark 1954 ruling that found school segregation unconstitutional. That line of questioning on Brown has also been popular with circuit nominees.

In response, Barrett defined super precedent as “cases that are so well settled that no political actors and no people seriously push for their overruling.” She added: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.”

Nominees often cite a judicial norm that it would be improper to comment on active issues of law that might come before them. Hearings are, however, a political stage for senators.

“It is more like virtue signaling, where senators are signaling their views about the issue,” Ziegler said. “They’re not really talking to the nominee, and they’re not really expecting the nominee to say anything.”

In their questions, Ringhand said, senators are trying to make arguments to both the nominee and the public, “that their view of these currently contested cases, should be considered settled law.”

The Supreme Court’s decision in the Mississippi case could fuel further Supreme Court confirmation battles as soon as next summer. A decision in the case will likely come by the end of the court’s term, the same time progressives are hoping to hear a retirement announcement from Justice Stephen Breyer.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com