By Mark Mellman - 01/18/06 12:00 AM EST
If Samuel Alito is confirmed to the Supreme Court, Republicans will rue the day. At some future moment, having lost the Senate, the House and the White House, they will look back on the Alito confirmation in horror, knowing it was there that they won the battle that lost the war.
It is one thing to bob and weave, undulate and obfuscate at the witness table. On the bench, a justice must render verdicts, and those verdicts have real-world consequences. The other night, I watched a fascinating dialogue during which Justice Stephen Breyer averred that justices cannot allow public clamor to influence their decisions.
The public has a quite different understanding. Many assume that a decision like Roe v. Wade will be upheld precisely because the political consequences of overturning it are so dire. Voters are likely right about the consequences but may be wrong in assuming they are important to the court.
Judge Alito believes Roe v. Wade was wrongly decided. This is not merely a question of his personal convictions about abortion. Alito believes that the Constitution was misused in Roe to produce the wrong legal result. In his view, the Supreme Court has no business guaranteeing a woman’s right to choose. As a justice, we can expect him to act on those convictions and overturn Roe, without regard for public opinion. Of course, that is just what the far right wants.
But, after Alito, the deluge.
Dozens of polls have asked whether voters want Roe to be overturned. The answer is a resounding no. Depending on who was asking the question and how, somewhere between 59 percent and 66 percent respond they want Roe to be upheld. No more than 34 percent have ever said they want the landmark decision to be overturned, and that number was reached only once. Most often fewer than 30 percent favor dismantling Roe.
Support for the right to choose is not only widely held, it is deeply felt. That some are complacent today is only a result of their misplaced confidence that no court would ever in fact overturn Roe. But as the song says, “you don’t know what you’ve got till it’s gone.” Nothing would do more to galvanize and politicize America’s pro-choice majority than overturning Roe.
The results for Republicans would be politically catastrophic. Millions would take to the streets. Pat Robertson would, no doubt, foretell of the protestors being swallowed up by the earth, like those who rebelled against Moses in the desert. He will once again be proved a false prophet.
Nearly two-thirds of the electorate would be seething with anger. The dwindling band of pro-choice Republicans, now poised to vote for Alito, would be branded knaves as well as fools and swiftly ousted at the next election.
Since there is no state in the country where a majority favors overturning Roe, every Republican in anything like a swing state would be endangered and many defeated. Republican House members would be swept out in the wave, moderates first.
What of the Democrats who may have been complicit in putting Alito on the bench? They will appear foolish at best, but more likely as traitors in the eyes of their constituents. Each one will face a primary, and most will be defeated by the highly motivated and vast pro-choice majorities in every Democratic electorate in the country.
The whole scenario calls to mind the closing scene from the movie “Tora! Tora! Tora!” where one of Yamamoto’s acolytes congratulates him on destroying the American fleet in Pearl Harbor. The wise and almost tearful admiral replies, “I am afraid that all we have done is to awaken a sleeping giant.”
Overturning Roe would certainly awaken the sleeping giant that is pro-choice America.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982, including Sen. John Kerry (D-Mass.) in 2004.