"He Wishes He Could Have Hugged Her"

Thomas Droleskey, Ph.D.

“He wishes he could have hugged her.” Thus stated White House Press Secretary Scott McClellan on Friday, July 1, 2005, when describing the conversation that took place between President George W. Bush and Justice Sandra Day O’Connor after Mr. Bush received Mrs. O’Connor’s official letter of resignation as an associate justice of the United States Supreme Court. McClellan went on to say that the President congratulated Justice O’Connor for her work on the high court, noting that she “had done good” for a Texas ranch girl, an allusion to her youth growing up in the Lone Star State. All sweet and gooey. Very nice, except for the inconvenient little fact that there is nothing about Sandra Day O’Connor’s twenty-four year tenure as an associate justice on the United States Supreme Court that is praiseworthy. Indeed, her entire tenure is quite reprehensible.

Sandra Day O’Connor was nominated in 1981 by then President Ronald Wilson Reagan to replace the retiring Associate Justice Potter Stewart. Many of us who were gullible enough to have thought that the 1980 Reagan landslide would mean the appointment of pro-life justices were mightily disillusioned and angered by the O’Connor nomination, which signaled a monumental betrayal of a major part of the late President’s electoral constituency.

President Reagan’s chief advisers, including Attorney General William French Smith, Chief of Staff James A. Baker III and Deputy Chief of Staff Michael Deaver, who was the Oval Office representative of the convictions of Mrs. Nancy Davis Reagan on many occasions, believed that it was important to nominate a female to serve on the Supreme Court, thus helping to close the alleged “gender gap” that existed among women voters in the 1980 election. Reagan himself made a Freudian slip when announcing the nomination by saying that he wanted to find the “best woman” available for the job. (Reagan had vowed to appoint a woman to the Court when campaigning for the White House against President James Earl Carter, Jr., and Representative John Anderson in 1980.) Republicans, who then controlled the United States Senate, fell into line behind the O’Connor nomination, praising Reagan for his boldness in choosing a woman to serve on the Supreme Court. Not one allegedly “pro-life” senator opposed the nomination. And lest anyone out there in the land of conservatism and Reaganism contend that neither Reagan nor his advisers nor “pro-life” senators knew anything about Sandra Day O’Connor’s true convictions, permit me to tell you something: you are refusing to face reality.

To wit, both Howard Phillips, the Chairman of the Conservative Caucus Foundation, and Mrs. Judie Brown, the President of the American Life League, testified in open hearings before the Senate Judiciary Committee, then chaired by Senator Orrin G. Hatch of Utah, about Judge Sandra Day O’Connor’s completely pro-abortion voting record as the Majority Leader of the Arizona State Senate. They presented incontrovertible evidence about Mrs. O’Connor’s pro-death positions. The factual evidence presented by Mr. Phillips and Mrs. Brown meant nothing to the supposedly “pro-life” senators, most of whom supported baby-killing in some circumstances. Sandra Day O’Connor was confirmed unanimously by a Senate vote of 99-0.

Associate Justice Sandra Day O’Connor is best known for the Opinion of the Court she wrote in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992. Here is part of what she wrote in an opinion that upheld a Pennsylvania law requiring, among other things, the provision of information to women considering killing their preborn children while rejecting the request of the administration of President George Herbert Walker Bush to use that case to overturn Roe v. Wade:

To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.

It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut (1965). When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child.

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.

This is something for which Sandra Day O’Connor needs to be hugged? No, Justice O’Connor’s lamentable service on the United States Supreme Court is to be deplored. And those who hold out the ever-furtive hope that President George W. Bush will make his first nomination  for a vacant seat on the United States Supreme Court on the basis of a desire to reverse Roe v. Wade are as delusional as many of us were with President Reagan twenty-four years ago prior to his nomination of O’Connor. Such earnest folks will be disappointed. Why? Once again, some basic facts:

  1) George W. Bush is on record as saying that the country is “not ready” to reverse Roe v. Wade.

  2) George W. Bush appoints pro-aborts to every single level of his administration. For example, Current Secretary of the Department of Homeland Security, Michael Chertoff, a thorough-going pro-abort, was confirmed by a vote of 99-1 in 2003 to a seat on the United States Circuit Court of Appeals for the Third Circuit (Philadelphia) despite his completely pro-abortion credentials. He had served as Chief of the Criminal Division of the Justice Department under Attorney General John Aschcroft prior to his elevation to the Third Circuit.

  3) Current Attorney General Alberto Gonzales, who is the likely nominee to replace Justice O’Connor (Bush did elevate him to the Chief Justiceship of the Supreme Court of the State of Texas), said in his confirmation hearings six months ago that “Roe v. Wade is settled law” and that he would enforce that law. It was as Chief Justice to the Texas Supreme Court that he voted in the majority to invalidate a mere parental notification law that had been signed into law by then Governor George W. Bush. Even if Gonzales is not the nominee he will exercise great sway in the selection process, as will pro-abortion White House Chief of Staff Andrew Card.

  4) President Bush knows that Democrats will filibuster any nominee to serve on the United States Supreme Court who has the whiff of a scent of being pro-life. Pro-death Republicans such as Arlen Specter, Lincoln Chafee, John Warner, Susan Collins and Olympia Snowe might join in such a filibuster.

  5) The fact that President Bush served to offer effusive praise to Justice O’Connor despite her pro-death record is an indication that supporting the killing of babies is no impediment to civic honors. Would Mr. Bush have been so effusive if Justice O’Connor wanted to bring back the evil of invidious racial segregation under cover of law? I do not think so. It is clear that President Bush believes that support for baby-killing is merely a matter of a “difference of philosophy” that ought not get in the way of politeness and respect for the work of a Supreme Court associate justice upon her retirement. Look what happened to Senator Trent Lott when he was heaping praise upon Senator Strom Thurmond as he left the Senate at the end of 2002. Lott’s mere mention that he thought Thurmond should have been elected President of the United States in 1948 when he was a segregationist cost him his position as Senate Majority Leader. Lott’s support for his fellow Mason Thurmond could not be forgiven while Sandra Day O’Connor’s support for baby-killing is no impediment to high praise and virtual hugs from President George W. Bush.

There are some who want to see President Bush nominate a candidate in the mold of Associate Justice Antonin Scalia. Heaven forfend such a thing. Scalia, although a very devout Catholic, is a judicial positivist who believes that abortion is a matter that the Constitution leaves by its silence on the subject to the province of state legislatures. He told a Communion Breakfast in New York in 1997 that he would have to uphold any state law permitting abortion, assuming it had been passed legally by a state legislature, as the Constitution of the United States of American neither forbids nor permits it, thus leaving the matter entirely to the states to decide. Leaving aside the fact that no institution of civil governance can enact licitly any legislation that contravenes the binding precepts of the Divine positive law and the natural law, an argument can made that Scalia is wrong on pure constitutional grounds: the Fifth and Fourteenth Amendments to the United States Constitution may be read as forbidding the taking of any innocent life.  No, we need to be spared the legal and judicial positivism of another Antonin Scalia, who has said that he cannot use the natural law as the basis of constitutional interpretation.

Obviously, all manner of conservative think tanks and policy foundations are going to be sending out fund-raising letters to support Bush’s eventual nominee, no matter who he or she turns out to be. As I have noted in another commentary, the whole matter of interpreting a Constitution that admits of no higher authority than the words contained within its own text is much akin to Sisyphus pushing that boulder up a hill. Nothing is ever settled in American constitutional law until and unless it is settled along the lines of a complete and utter rejection of any semblance of the Deposit of Faith Our Lord has entrusted exclusively to His true Church.

While we pray for the good of our nation and that as much good as possible can be done within the flawed nature of the institutions under which we live, we must also recognize that those who support baby-killing in some instances and who appoint those who believe in baby-killing in all instances to positions of high public trust and power are not our friends and will never be the instruments by which the evils of our day will be retarded.

We must, as always, wrap our arms around Our Lady of Fatima, beseeching her that Pope Benedict XVI will stop serving as an apologist for such nonsensical phrases as a “healthy secularity” and wake up to realize that he has it within his power to usher in a culture of eternal life by consecrating Russia to her Immaculate Heart with all of the world’s bishops. Nightmares such as the United States Supreme Court will then be a thing of the past. Judges will obey God’s eternal laws, not man’s relativist and positivist predilections that lead his nation to ruin and himself to Hell.

Our Lady of Fatima, pray for us.