Republicans and Democrats alike regularly claim that if the other party's presidential candidate wins, a national calamity will ensue. Call it the Chicken Little strategy. And despite the dire predictions of both parties, the sky never entirely seems to fall.
For 36 years, however, liberals have argued a unique version of this strategy. If a Republican is elected or re-elected president, the argument goes, then the right to choose — abortion, that is — will be threatened, desperate women and girls will be forced into back alleys with coat hangers, and a right to privacy will be destroyed.
How? A Republican president will stack the Supreme Court with right-wing justices who overturn Roe vs. Wade.
The 2008 election was no exception to this history of hyperbole. Nancy Keenan, president of NARAL Pro-Choice America, told the Democratic National Convention, "It is no overstatement to say that reproductive freedom is on the line in this election."
It's the same line Keenan and her cohorts have used in every election since the Roe decision. Yet despite the fact that Republicans have won five of nine presidential elections since 1973, even a Bush "extremist" such as Chief Justice John Roberts recognizes abortion law as being "settled as a precedent of the Court."
This week's hearings on Supreme Court nominee Sonia Sotomayor demonstrate the point. President Obama has named Sotomayor to replace Justice David Souter, another Republican appointee.
Back in 1990 when George H.W. Bush put Souter's name forward, the sky was falling.
Within two years of his confirmation, Souter joined the lead opinion in Casey vs. Planned Parenthood, a case that reaffirmed the Roe decision.
Conservatives haven't done well as Chicken Little — and certainly not as Foxy Loxy. Admonitions about judicial activism just don't have the same sense of urgency as, say, an assault on individual freedom. The elevation of Sotomayor can change all that.
Presidents, as the only officeholders elected by the entire nation, should have broad discretion in making appointments. Too often, however, senators with narrow political interests have abused the Constitution's advice and consent clause to block the will of the people by obstructing presidential nominees.
Democrats know this process all too well, having corrupted it to sink the nominations of Robert Bork, Miguel Estrada and other Republican judicial appointments — not because they weren't qualified, but simply because Democrats, including Sen. Barack Obama, disliked their politics and judicial philosophies.
Is Sotomayor qualified? It will be difficult and probably self-defeating for Republicans to argue that she is not eminently so.
But what about her politics and judicial philosophy? Didn't the opinion she joined in U.S. vs. Sanchez-Villar cite "the right to possess a gun is clearly not a fundamental right?" Wasn't her ruling in Didden vs. Port Chester an assault on private property rights on par with the Kelo decision? Didn't she support racial bias in Ricci vs. DeStefano?
Yes, yes and yes. Which is why conservatives should accept Sotomayor both as a matter of principle and politics.
Elections have consequences, Obama has chided his critics. One of those consequences is that presidents have the power to reshape the Supreme Court in ways that can radically alter the law of the land.
Liberals have successfully made this argument with erroneous portents of doom about abortion. With Sotomayor on the high court, conservatives will be able to make the same point with validity on a much broader range of issues.
No, the sky won't fall if a liberal president can stack the Supreme Court. But voters may justifiably fear their Second, Fifth and Fourteenth Amendment rights — for starters — just might.
