Roe v. Wade Was Decided By A Republican-Nominated Supreme Court

11/06/2016 07:05 pm ET Updated Nov 09, 2016

One of the major issues in this presidential election concerns the nomination and subsequent appointment of at least one Supreme Court justice and possibly two or more justices.

It seems that among evangelical Christians, two issues in particular are driving support for Donald Trump: the nomination/appointment of Supreme Court justices, and the fact that he is Republican.

Moreover, at the center of the Supreme Court discussion is the 1973 Court decision on Roe vs. Wade.

During the final debate between Clinton and Trump, held at the University of Nevada, Las Vegas, on October 19, 2016, and moderated by Chris Wallace of Fox News, Wallace opened the debate with discussion of the Supreme Court. Below are the excerpted responses from Clinton and Trump on the issue of nominating Supreme Court justices, especially as such concerns Roe vs. Wade. (The full transcript can be read here.)

Clinton: But I feel that at this point in our country’s history, it is important that we not reverse… Roe v.Wade….
That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.
And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process. …
Trump: I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent.
Wallace (to Trump): But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?
Trump: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination. …
Clinton: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine.

So, we have the Republican presidential candidate opposed to Roe vs. Wade and wanting to appoint justices to overturn it, and we have the Democratic presidential candidate supporting Roe vs. Wade and wanting to nominate justices that will support it.

In the remainder of this post, I address two assumptions/generalizations that evangelical Christians I have interacted with appear to possess: 1) The president has free rein in appointing Supreme Court justices; 2) filling the Supreme Court with Republican-nominated/appointed justices will lead to reversal of Roe vs. Wade.

To begin, if the president had free reign in appointing Supreme Court justices, then there would be no current vacancy. President Obama’s March 16, 2016, nomination of Merrick Garland to replace Antonin Scalia, who died on February 13, 2016, is unprecedented in that the Senate simply refused to consider the nomination.

However, the reality is that the president must work with the Senate when nominating a justice because the president’s nomination must first go before the Senate Judiciary Committee then to the full Senate, where a majority vote of Senators present is required to confirm the nomination. (To read about the nomination and confirmation processes, see here and here.)

Thus, no matter the intentions of Trump or Clinton to nominate potential justices with a particular view on Roe vs. Wade (to overturn or not), any nomination must gain approval of the majority of Senators present on the day of a vote to confirm. Currently,Republicans hold a majority in the Senate; however, there is no guarantee that such will be the case after November 08th, and what the Senate majority will be when future seats become open on the Court is unknown.

Indeed, some Republican US senators are formulating plans to prevent confirming any Supreme Court nomination from Clinton should she become president.

But let us consider the assumption that justices nominated by Republican presidents will lead to overturning Roe vs. Wade.

If a Supreme Court dominated by nominations by Republican presidents were a guarantee of overturning Roe vs. Wade, then the outcome of Roe vs. Wade would have been different from the outset.

The reality is that in 1973, Roe vs. Wade was decided by a Court that was comprised of a majority of justices who were nominated by Republican presidents.

The vote on Roe vs. Wade was 7-2. Those justices supporting the case’s pro-choice outcome were as follows, including the president nominating each and the president’s party affiliation:

  • Harry Blackmun (Nixon, R)
  • Warren Burger (Nixon, R)
  • William Douglas (FDR, D)
  • William Brennan (Eisenhower, R)
  • Potter Stewart (Eisenhower, R)
  • Thurgood Marshall (LBJ, D)
  • Lewis Powell (Nixon, R)

Those dissenting on Roe vs. Wade — only two – and both were not Republican-president-nominated to the Court:

  • Byron White (Kennedy, D)
  • William Rehnquist (Nixon, R; chief justice under Reagan, R)

Nixon nominated four justices. Three concurred on Roe vs. Wade— arguably a decisive factor in the outcome of the case.

The bottom line is that Democratic presidents did not nominate the Supreme Court that produced the Roe vs. Wade outcome that many evangelical Christians believe a Trump/Republican presidency will reverse.

Reality: A Supreme Court dominated by Republican-nominated justices produced Roe vs. Wade.

Those who are deliberately ignoring Donald Trump’s lack of business ethics, failure at statesmanlike carriage, questionable international connections, lack of respect for women and people of color, and determined fiscal obliqueness in favor of his being the Republican Who Will Reverse Roe vs. Wade should contemplate this reality.

***

Mercedes K. Schneider, Ph.D., is a Louisiana public school teacher, researcher, author, and education advocate. She is also a follower of Christ who desires fellow believers to vote informed. She blogs regularly on educational issues at deutsch29@wordpress.com and tweets at @deutsch29blog.

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