If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested."I've already responded to this argument (as made by Jack Balkin) here and here. (For even more, see Balkin's response here and my further response here.)
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And, even in the unlikely event that O'Connor and Stevens were to retire, Bush is unlikely to replace both of them with committed opponents of Roe, because his advisers know that the decision's reversal would be a disaster for the party. Indeed, when Karl Rove was asked at a press coffee last month whether Roe should be overturned, he dodged the question. "Rove understands the political calculation, and he's never been a zealous pro-lifer," says a GOP pollster who asked not to be identified. "Hard-core conservatives want someone who passes the Souter test and will overturn Roe, but, for the Republican political establishment, that's the nightmare scenario."
Two further thoughts occur to me, though: First, if overturning Roe would be such a disaster for Republicans, and correspondingly such a boon to Democrats, how come no Democratic politicians have explicitly come out in favor of anti-Roe judicial nominees? Are they all too dense to grasp the wondrous possibilities that overturning Roe would supposedly create for themselves? Or are they all so controlled by their side's special interest groups that none of them have the courage to call in the PFAW and NOW people and say, "Look, you're not going to like this, but we're going to help Bush appoint anti-Roe Supreme Court nominees. It will be the best for our party in the long run. Plus, your groups will be able to raise more money anyway, so don't complain." Why is it that instead, we see Democrats filibustering and obstructing Miguel Estrada merely because they think 1) he might end up being a Supreme Court nominee someday and 2) he might be prolife? Are all the Democrats utterly daft?
Second, the social conservative wing of the Republican party -- a group of people who make up about a third of the country, don't forget -- would never stand for another Souter. Out of the last 5 Republican appointments -- O'Connor, Scalia, Kennedy, Souter, and Thomas -- only two turned out to be against Roe. For the past 22 years, the message to conservatives has always been, "Oops, another pro-Roe Justice slipped through. Well, just keep voting Republican and maybe you'll have better luck next time."
But there is no way that the Republican base is going to stand for another appointment that turns out to be pro-Roe. Recall, if you will, the 1998 incident in which James Dobson threatened to arrange a mass desertion of the Republican party if the Republicans didn't get serious about conservative issues. (Here's how Slate and CNN reported on it at the time.) Well, imagine that sort of revolt actually occurring if Bush appointed another Souter. Not that conservatives would suddenly start voting Democratic, but they might just stay home on election day. I can't imagine that Republican strategists like Rove aren't superlatively aware of this factor, no matter what Jeffrey Rosen might say.
On the other hand, perhaps Rove et al. are more clever and devious than I am giving them credit for. Perhaps it is they who have planted this meme in the media, this idea that "My goodness, we Republicans are really, really, frightened of seeing Roe overturned. Oooh, wouldn't that be awful for us." And meanwhile, behind the scenes, the real plan is to throw everyone off the scent -- to make everyone think that if Bush nominates a cipher, that nominee will end up being a pro-Roe Souter rather than an anti-Roe Thomas.
But wait, maybe that really isn't the plan at all. Maybe the plan really is to appoint a pro-Roe Justice, but to make conservatives think that the real scheme is to appoint an anti-Roe Justice under the cover of telling liberals that the Republican establishment really wants a pro-Roe -- oh, never mind.