McCain, Roe v. Wade, and the Supreme Court
Friday October 17, 2008
The third and final presidential debate on Wednesday touched on several civil liberties issues, but none as extensively as abortion rights. In particular, McCain's discussion of judicial appointments vis-a-vis Roe v. Wade is interesting--and might initially appear to conflict with previous statements he had made on the subject:
On the other hand, his statement that he will rely on qualifications, and not use Roe as a litmus test, also gives him wiggle room to appoint a pro-Roe justice if he chooses to do so, or is forced to do so by political circumstances. What he is asserting here, in other words, is that he will appoint whoever he wants.
Roe is important for many reasons that have nothing to do with abortion rights. Griswold v. Connecticut (1965), which struck down state bans on birth control pills, is a precursor to Roe and relies on the same right to privacy that an anti-Roe Court would likely strike down. So does Lawrence v. Texas (2003), which struck down state sodomy laws. Current cases making their way through appeals courts, in which plaintiffs are attempting to strike down laws banning everything from cohabitation to sex toys, are also based on the right to privacy central to Roe. So in a country where Roe is overturned, it's likely that a wide range of private behavior--and not just abortion--would be criminalized in conservative states. Overturning the doctrine of an implicit right to privacy could also strengthen the government's case in favor of warrantless surveillance programs, citizen dossiers, and other initiatives that threaten individual privacy.
Related: John McCain and the Supreme Court | John McCain on Abortion and Reproductive Rights | What If Roe v. Wade Were Overturned?
SCHIEFFER: Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't.On a first reading, it might sound like this means that McCain would be willing to appoint a pro-Roe justice to the Court. He might have to, frankly, given the likely makeup of the U.S. Senate. But "a history of strict adherence to the Constitution" has historically been conservative-speak for not reading implicit rights (such as the right to privacy) into the Constitution, and "legislating from the bench" has historically been conservative-speak for using these implicit rights to strike down legislation that violates them. So he still leaves himself plenty of wiggle-room to use Roe as a litmus test, even though McCain claims that this is not what he would be doing, by relying on a history of conservative jurisprudence as a "qualification."
Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?
MCCAIN: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.
SCHIEFFER: But you don't want Roe v. Wade to be overturned?
MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad ... And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test ...
I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about.
Senator Obama voted against Justice Breyer [McCain means Justice Alito -- TH] and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.
I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.
SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?
MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.
On the other hand, his statement that he will rely on qualifications, and not use Roe as a litmus test, also gives him wiggle room to appoint a pro-Roe justice if he chooses to do so, or is forced to do so by political circumstances. What he is asserting here, in other words, is that he will appoint whoever he wants.
Roe is important for many reasons that have nothing to do with abortion rights. Griswold v. Connecticut (1965), which struck down state bans on birth control pills, is a precursor to Roe and relies on the same right to privacy that an anti-Roe Court would likely strike down. So does Lawrence v. Texas (2003), which struck down state sodomy laws. Current cases making their way through appeals courts, in which plaintiffs are attempting to strike down laws banning everything from cohabitation to sex toys, are also based on the right to privacy central to Roe. So in a country where Roe is overturned, it's likely that a wide range of private behavior--and not just abortion--would be criminalized in conservative states. Overturning the doctrine of an implicit right to privacy could also strengthen the government's case in favor of warrantless surveillance programs, citizen dossiers, and other initiatives that threaten individual privacy.
Related: John McCain and the Supreme Court | John McCain on Abortion and Reproductive Rights | What If Roe v. Wade Were Overturned?
Comments
I wonder what McCain meant by “Elections have consequences” in this context?
I also thought that “strict adherence to the Constitution” meant that he would use a litmus test, without using those words.