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Will Anthony Kennedy’s replacement really end Roe v. Wade?

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WASHINGTON, D.C., June 28, 2018 (LifeSiteNews) – Wednesday’s bombshell news that a pro-life president will finally get to replace the atrocious Anthony Kennedy with a Supreme Court justice committed to the Constitution has supercharged pro-life imaginations, and rightly so. After four decades and 60 million dead babies, overturning Roe v. Wade is long overdue.

But as we prepare for the fight of our political lives over President Donald Trump’s next nominee, it’s critical that pro-lifers keep in mind not only the pitfalls lurking in the confirmation process, but also the uncomfortable truth that the future justice might not be the one we have to worry about.

If there’s one thing that should be seared into every pro-lifer’s consciousness by now -- after pro-abortion GOP nominees Kennedy, Sandra Day O’Connor, John Paul Stevens, or David Souter – it’s to never settle for “stealth nominees,” ostensibly-qualified jurists without a paper trail on hot-button issues that could invite controversy during confirmation hearings.

Conventional wisdom holds that we’re supposed to settle for inferring their positions from their general legal philosophy, that we’re not supposed to ask potential justices how they would rule in specific cases because it would “politicize” them, or amount to prejudging future cases. Which is absurd; in what other field would job interviewers refuse to verify an applicant’s credentials by testing them against examples?

In the coming weeks it will be up to professional pro-life organizations to carefully evaluate the rumoured shortlist and eventual pick, and demand that Republican senators thoroughly grill him on not only his legal philosophy, but how he applies it to precedent such as Roe. And if the Senate’s two pro-abortion Republicans do end up opposing a reliable pro-life nominee, it will be Trump and Mitch McConnell’s responsibility to either bring them back in line or ensure they are held accountable.

Unfortunately, even if all goes well, our mystery judge might not be enough. Clarence Thomas is as close to a constitutional gold standard as it gets, and Samuel Alito has earned pro-lifers’ confidence, but the other two members of the Supreme Court’s “conservative wing” remain question marks on life.

SCOTUS newbie Neil Gorsuch has largely satisfied constitutionalists during his first year on the court, he ruled the right way on this month’s big culture-war wins, and it’s entirely possible he’ll deliver on Roe. But he doesn’t have much of a paper trail specifically on abortion, and unaddressed red flags still linger from his confirmation hearings.

Gorsuch refused to commit to ruling either way on Roe, but he argued that the mere fact of a ruling being precedent “has lots of value,” because it “adds to the determinacy of law.” He even boasted that he “would have walked out the door” if Trump had directly asked him to overturn Roe. While he didn’t say he’d never rule against precedent, he also testified that judges should start every case with a “heavy, heavy presumption in favor of precedent,” which they should only overturn in “a very few cases.”

This overwrought bias toward the deadly and overrated legal doctrine of stare decisis should have deeply alarmed pro-life groups, but most rushed to endorse him instead -- forgetting how another stare decisis fan, John Roberts, has turned out so far.

Roberts did vote to uphold the partial-birth abortion ban in Gonzales v. Carhart, but in doing so he declined to join Thomas and Scalia’s concurring opinion that called for overturning Roe, and during his confirmation hearings he called Roe not only the “settled law of the land,” but “a little more than settled.”

In practice, giving so much weight to a factor other than “does the Constitution’s text allow or require this?” means something that inarguably violates the Constitution should keep violating the Constitution, just because it’s been around a long time and gotten rubber-stamped a lot -- pure madness.

But most importantly, Roberts has already demonstrated his willingness to do far worse to the law than that. In 2012, he cast the deciding vote to save Obamacare by basically rewriting its fines (which he admitted were unconstitutional if defined as the penalty they actually were) to make them into taxes instead (which still exceeded Congress’ enumerated powers anyway, but he ignored that little detail). He saved Obamacare again in 2015, using similarly preposterous logic.

It’s been theorized that Roberts was driven not out of any particular understanding of the Constitution, but out of some perverse sense of stewardship for the Supreme Court’s “institutional integrity” that makes him reluctant to do anything that would dramatically change the political status quo in either direction. Take it all together, and it’s hard not to conclude that he’s most likely to find a similarly convoluted way to save Roe.

Now’s the time for pro-lifers to prepare to rigorously evaluate our next candidate for the Supreme Court, and to fight tooth and nail if he or she passes muster. But if past nominations where we failed to do due diligence come back to bite us, our task will shift to taking a look at new legislative strategies to defang Roe v. Wade and restrain the unchecked power that infuses court vacancies with such nerve-wracking importance in the first place.

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Calvin Freiburger

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Calvin Freiburger is a Wisconsin-based conservative writer and 2011 graduate of Hillsdale College. His commentary and analysis have been featured on NewsReal Blog, Live Action, and various other conservative websites. Before joining LifeSiteNews, he spent two years in Washington, DC, working to build support for the Life at Conception Act with the National Pro-Life Alliance, then worked a year and a half as assistant editor of TheFederalistPapers.org. You can follow him on Twitter @CalFreiburger, and check out his personal website, ConservativeStandards.com.