Choosing a court

When Dwight D. Eisenhower was asked what was his biggest mistake as president, he is supposed to have replied, “I made two, and they’re both sitting on the Supreme Court.” He referred to Chief Justice Earl Warren and Justice William J. Brennan, both of whom turned out to be too liberal for Eisenhower’s taste.

Daniel Schorr, a liberal commentator who is usually thought-provoking, recalls that exchange and goes on to make the case that, as far as Supreme Court appointments are concerned, it makes no difference whether you vote for George W. Bush or Al Gore in November. Mr. Schorr notes that the current court, with seven justices named by Republicans and only two named by President Bill Clinton, has handed down some surprisingly liberal decisions.

He cites recent rulings upholding restrictions on outdoor advertising of cigarettes, forbidding public schools from letting students lead stadium crowds in prayer and endorsing the Miranda decision requiring that criminal suspects be informed of their rights. And, by a 5-4 vote, the current court even struck down a law banning a type of late-term abortion and permitting states to restrict demonstrations outside health clinics that perform abortions.

When it comes to the key abortion issue, however, the future of Roe v. Wade, Mr. Schorr has stretched his case too far. In Roe v. Wade, the court in 1973 declared for the first time that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Consider the sharp contrast between the Republican and Democratic party platforms.

The Republican platform says: “We support a human-life amendment to the Constitution and we endorse legislation to make clear that the 14th Amendment’s protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will hot fund organizations which advocate it.”

The Democrats say: “The Democratic Party stands behind the right of every woman to choose, consistent with Roe v. Wade, and regardless of ability to pay. We believe it is a fundamental constitutional liberty that individual Americans – not government – can best take responsibility for making the most difficult and intensely personal decisions regarding reproduction.”

The nominees themselves are equally at odds on this central issue. Gov. Bush has backed off from pledging to require a litmus test of prospective Supreme Court nominees. Instead, he has said that his nominees would be “strict constructionists.”That phrase that may sound moderate but is widely understood to be a code for “overrule Roe,” since it means that the only individual rights that the courts should protect are those that the Constitution spells out explicitly. Douglas Johnson, legislative director of the National Right to Life Committee, has said: “If [a nominee] is a strict constructionist, he will vote to overturn Roe v. Wade.”

Vice President Gore, like many other Southern Democrats, has moved from a generally anti-abortion position to full support of a woan’s right to choose. His conversion took place 14 years ago, and that seems to satisfy the National Abortion Rights Action League. The league’s Alice Travis Germond has justified its endorsement of the vice president by telling The Wall Street Journal: “We’re not giving out lifetime achievement awards.”

So it does make a difference, and while both candidates are trying to appeal to the political center, their views on major issues such as court appointments would lead the nation in very different directions.