Judd Gregg: Abortion is the straw dog of Court confirmation process

Judd Gregg: Abortion is the straw dog of Court confirmation process
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President TrumpDonald John TrumpTrump administration eyes proposal to block jet engine sales to China: report Trump takes track to open Daytona 500 Brazile 'extremely dismayed' by Bloomberg record MORE put an exceptionally talented, intelligent and thoughtful conservative jurist on the Supreme Court when he nominated Neil Gorsuch last year.

Amazingly, he now has the chance to choose a second justice less then two years into his term of office.

This is a truly extraordinary turn of events, and very good fortune for the president. It has not happened before, except arguably when President Franklin D. Roosevelt tried to “pack” the Court in the 1930s.


On Monday evening, the president is expected to announce his choice. In combination with the choice of Gorsuch, there is unlikely to be any domestic event that is more crucial for his legacy.


The debate swirling around this decision has been centered on what it portends for the issue of abortion, and specifically the survival of the precedent set in Roe vs. Wade.

It is a straw dog debate, built by the left and the right for the political consumption of their constituencies, but without any real likelihood of any such drama occurring.

The right to have an abortion as set by Roe vs. Wade will not be impacted by the justice that Trump proposes anymore than it has been by the confirmation of Chief Justice John Roberts, Justice Samuel Alito, Justice Elena Kagan or Justice Neil Gorsuch.

I leave Justice Sonia Sotomayor off this list because it seems that the Constitution, law and precedent hold no role in determining her views, which appear to be set solely by her personal prejudices and intentions.

There have only been two issues in the history of our democracy that qualify as “non-debatable” — that is, issues where neither side can be convinced to change its views by any argument made by those on the other side.

The first was slavery, which had to be settled by a civil war that cost hundred of thousands of lives and changed the nation fundamentally.

The second is abortion.

The issues raised by abortion have not been settled.

They have been legally “shelved,” primarily by the Roe vs. Wade decision.

People who believe that an abortion is the taking of life have not and will not change their views. People who believe that it is up to the individual woman to make the decision on how to proceed with her pregnancy will not change their views either. 

What the nation has reached through the Supreme Court’s decision is a separate peace, where neither side has given up their views but the law is settled.

Would a more conservative Court — or, for that matter, a more liberal Court sometime in the future — change this status? The answer is no.

The hypothetical opportunity for such a change already exists. It is clear that the Roberts Court does not want to go down this path.

In fact, one does not even know how the conservative justices would vote on such a review even if it ever did take place, which it will not.

One needs to only look at the way that Roberts handled the issue of the constitutionality of ObamaCare to see that neither he nor his court wish to step into arenas that are extremely political.

In that case, where the unconstitutionality of the law was obvious, the Court created an out by claiming the right of Congress to tax as the basis for the law. It was a not so subtle sidestep of an issue the Court deemed too political to touch.

Revisiting Roe vs. Wade is exponentially more politically explosive than any other issue the Court could confront.

Its reversal would throw the nation into a period of uncontrolled political disorder. The members of the Court understand this. They are not about to loose those forces of chaos on the nation.

Thus the claim that the new nominee, whoever he or she is, would do something other than what all other nominees have done is just political fodder for the bases.

If the person nominated is a thoughtful, honest and conservative jurist, he or she can and should, at the minimum, be confirmed with 51 Senate votes.

The fact that it only takes 51 votes to confirm a justice to the Supreme Court, which means all of the Republicans can confirm a justice without Democratic support, is astounding in and of itself.

It is a credit to the guile of Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump declares war on hardworking Americans with new budget request The Hill's Morning Report — AG Barr, GOP senators try to rein Trump in Overnight Health Care: Nevada union won't endorse before caucuses after 'Medicare for All' scrap | McConnell tees up votes on two abortion bills | CDC confirms 15th US coronavirus case MORE (R-Ky.) and the tactical foolishness of the Democratic caucus that confirmations now occur this way. The precedent had been set, albeit for lower courts, by former Senate Majority Leader Harry ReidHarry Mason ReidHarry Reid: 'People should not be counting Joe Biden out of the race yet' Warren highlights work with Obama, Harry Reid in new Nevada ad Yes, Democrats have to defend their African-American base against Trump MORE (D-Nev.).

Any justice nominated will give deference to legal precedent.

In the arena of abortion, however, it is much more than precedent that will weigh against the Court entering this arena. It is the need to avoid the apocalyptical political disruption that such a course would cause the nation.

The next Justice and the Court he or she serves on is not going back into this issue.

The confirmation of the next justice should not be allowed to turn on the issue of abortion if he or she is to be fairly evaluated.

Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.