Al Gore and George W. Bush would lead this country in different directions. The two candidates disagree about Social Security, income tax policy, environmental protection, and national missile defense, for example. Those are important issues, especially the last one, and the distinctions between the two men are genuine.
And yet there is another issue, so far barely mentioned in the campaign. Here the choice between Gore and Bush is starkest of all. Here the practical implications of that choice are unequaled in gravity. The issue is the composition of the federal judiciary. Shouldn’t an explicit discussion of that issue begin sooner rather than later? And shouldn’t George W. Bush be the candidate to begin it?
Right now the Supreme Court and the federal courts in general are closely divided on a host of crucial questions: abortion rights, racial preferences, religious liberties, and school choice, for instance. Judges appointed by a President Gore, like those already appointed by President Clinton, would virtually all of them move in a single direction through this theoretical docket: to the defense, and even the expansion, of the Warren Court legacy. In other words, a federal judiciary dominated by 12 or 16 years of Clinton-Gore appointees would cement modern judicial activism — legitimating and extending the Roe v. Wade abortion regime, excluding religion from the public square, and reconstitutionalizing counting by race. American constitutional law is already only tenuously related to the Constitution which purportedly forms its basis. A White House term or two for Al Gore and constitutional law will likely slip its moorings altogether and simply become an instrument of the left’s social and cultural agenda.
One can be less certain about Bush’s appointees than Gore’s. Some would probably be men and women like Justices Kennedy and O’Connor, who at least make common cause from time to time with the court’s authentic constitutionalists. Others would actually be constitutionalists of the Scalia-Thomas variety — after all, Bush has said that Scalia is the justice he most admires. And the worst mistake made by George W.’s father — David Souter — would most likely not be repeated. In sum: With a Bush administration, there is a fighting chance to roll back the worst excesses of liberal judicial activism, even a prospect of removing Roe, keystone of the modern imperial judiciary.
Will the courts become a big issue in the 2000 campaign? Yes, probably. For one thing, the subject’s intrinsic significance will eventually become apparent. For another thing, Al Gore may not wait until that happens. If Gore remains behind in the polls — say, by the Democratic convention in mid-August — he will gamble on abortion. Bush would refashion the courts to overturn Roe and destroy the right of a woman to make her choice along with her doctor, Gore will say. American opinion on abortion is complicated, but when the question is framed in certain ways — in the ways Gore will frame it — the answers can be made to favor the pro-choice side. And if Bush’s response is hesitant or inconsistent, Gore’s gamble may prove profitable.
Imagine: Gore raises the issue of Roe. Bush defensively asserts that he will impose no litmus test on judicial nominees. Gore then points out that Bush has praised Scalia and condemned Roe. Bush comes under pressure from pro-life supporters to reiterate those views — while he is simultaneously struggling to play them down. And the issue finally explodes into a question about Bush’s sincerity and his understanding of a fundamental domestic policy debate.
It doesn’t take much imagination, does it?
George W. Bush doesn’t much like to talk about abortion. He needs to be ready to do so just the same. And it would be sensible for him to do so first, and clearly, before he comes under heated and confusion-inducing assault. He might truthfully point out, for example, that overturning Roe would not mean the end of abortion in the United States; it would simply return the issue to state legislatures, from which a patchwork of abortion laws would soon emerge. Bush might go on to point out that, even post-Roe, a massive effort of public persuasion would be necessary to achieve the pro-life movement’s full hopes. And he might go on to explain why those hopes are just, and worthwhile. Will all of this be in the form of a preemptive, well-considered presentation by Bush? Or will Bush only address the issue as damage control, in response to a slashing attack from Gore — in which case Bush could appear ashamed of his own pro-life convictions, and could suffer accordingly?
In the coming campaign, the courts, and Roe v. Wade in particular, could well matter more than anyone now supposes. The Bush campaign should strike first.
William Kristol
