THE LINGERING PROBLEMS WITH ROE V. WADE, AND WHY THE RECENT SENATE HEARINGS ON MICHAEL MCCONNELL'S NOMINATION ONLY UNDERLINED THEM

Within the circle of former clerks to Justice Harry Blackmun, I have more than occasionally been taken to task for breaking with the party line and sharply criticizing Roe v. Wade, the opinion that will forever stand as the Justice's most famous contribution to American jurisprudence. But over the years, I've come to believe even more strongly that my initial doubts about the decision were valid.

Over the last few weeks, as the Senate completed another chapter in the sorry saga that we call the judicial nomination process, we were treated to another lesson in why Roe must be ranked among the most damaging of judicial decisions. The case in point is the nomination of Professor Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit - on which the Senate held hearings last month.

McConnell is a prominent and ideologically conservative academic who nonetheless enjoys a fair amount of bipartisan support. For reasons I will explain, it would be more than reasonable for the Senate to reject McConnell. But it should not do so because of his views on Roe. Sadly, however, if McConnell's nomination fails, that will be why.

There is much about McConnell's nomination that calls for a serious and probing debate. For one thing, he has aggressively championed an approach to the separation of church and state that relies on a selective view of history and precedent, and that is also disturbingly indifferent to the concerns of many non-Christians.

His writings in the areas of race and federalism also raise troubling questions for anyone constitutionally committed to a more liberal view of civil rights and federal power. Overall, McConnell's work seems to reflect that odd but not uncommon notion that white Christians are a truly disadvantaged group in our society, and that the law should level the playing field for them.

For these reasons, I would be perfectly comfortable if the Senate rejected McConnell. As I've written here and elsewhere, the Senate has every right to reject a nominee based on his or her ideology alone. The idea that the Senate embarks on a neutral analysis of "qualifications" has never been accurate, and it is, in any case, a misguided ideal to which to aspire.

Strikingly, 300 liberal and moderate law professors who have vouched for McConnell's integrity and open-mindedness. Nevertheless, McConnell has placed himself firmly on one side of the profound ideological divide in our legal culture - and on that basis the Senate may legitimately deprive him of a federal judgeship.

Policy Preferences Alone Are Not A Valid Reason to Reject a Nominee

But if the Senate - and here I'm talking about the Senate Democrats, who hold the power to deny McConnell confirmation - is going to reject President Bush's judicial nominees on the basis of ideology, then it has own constitutional burdens to meet. For the Senate's choice to exercise aggressively its power to "advise and consent" on judicial nominations carries with it a collective duty to develop and espouse a coherent view of constitutional interpretation against which to measure a nominee.

In other words, individual senators have no business rejecting nominees willy-nilly, say out of personal antipathy or on a whim. I would even say that a senator should not reject a nominee because of a difference in "politics" - that is, simply because a nominee has an opposing view of what makes for wise policy. The issue is not the nominee's policy views, but his or her views on how to interpret the Constitution - and fortunately for our legal culture, some nominees do still seem able to separate the two, refusing to simply write policies they prefer into the law.

Wise policy (by and large) is the province of the legislature, not of the judiciary. Thus, political differences provide no basis for rejecting a nominee, unless a senator thinks that the nominee will excessively and improperly impose his personal political views on the law.

That is a judgment not on the nominee's politics but on whether, jurisprudentially, he will respect the respective roles of Congress and the courts. Will a conservative nominee distort liberal laws, it asks, or a liberal nominee distort conservative ones? If so, both equally should be rejected.

Rejection of a judicial nominee on ideological grounds, thus, must be based on something deeper than the nominee's policy views alone. It must be based on a Senator's considered judgment that the nominee in question hold views at odds with the Senator's own vision of what the Constitution does and should mean.

And this is where Roe v. Wade makes its unfortunate appearance. If the Senate rejects McConnell, it will not be because of his views on religious freedom and establishment, or on race and federal power. No, it will be for one reason, and one only - because he has said with candor and some enthusiasm that Roe is a very bad decision with no foundation in law.

At McConnell's hearing, Senate Democrats fulminated about his harsh assessment of Roe. Replaying the theme they worked so successfully when torpedoing the nomination of Robert Bork, the Democrats portrayed McConnell as an enemy of the constitutional right to privacy generally and, more particularly, of a woman's privacy-based, Roe-enshrined right to control her body.

No doubt this makes for very good politics. But it corrupts the judicial nomination and confirmation process, and deeply injures those on the liberal side of our legal culture war who would like to wage the fight from a position of intellectual strength and integrity.

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather.

McConnell should not be rejected simply because he is brave enough to say that the emperor has no clothes. Indeed, McConnell's criticism of Roe should be taken as a sign of the integrity to which so many of his colleagues have testified - for McConnell himself doubtless knows that this is the issue that is prone to doom his nomination, yet he still has chosen to speak the truth.

Why Roe, As Constitutional Interpretation, is Virtually Impossible to Defend

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.

Before Roe, the right to contraception established in Griswold v. Connecticut and Eisenstadt v. Baird was a concept that was already barely hanging onto the high ledge of defensible constitutional thinking. In Roe, the Court added a 500 lb. lead weight. And the Court's been looking up at the ledge ever since.

Instead, as conservatives now scurry to do with Bush v. Gore, the friends of Roe seek to find other constitutional bases to defend its outcome. Might Roe be a stealth equal protection case - really relating not to the right of privacy, but instead to women's equality? Perhaps, but to say so amounts to a concession that the decision itself, as written, is unsustainable.

Roe is Precisely the Wrong Litmus Test For A Nominee's Constitutional Interpretation

In any event, when Democratic senators oppose a judicial appointment because of the nominee's opposition to Roe, they not only endorse but make a litmus test out of one of the most intellectually suspect constitutional decisions of the modern era. They practically require that a judicial nominee sign on to logic that is, at best, questionable, and at worst, disingenuous and results-oriented. In doing so, they select not for faithful, but for unfaithful, constitutional interpreters to people the federal judiciary.

This is a strategy with baleful long-term consequences. The standard critique of liberal judges trumpets their willingness to substitute personal preference for legal analysis - and Roe is universally featured as Exhibit A. Conservative judges, in truth, perform the same kind of substitution just as often - but there is not yet as flagrant an Exhibit A for this contention as Roe provides.

As long as liberals embrace Roe, they will be forced to unilaterally shoulder an "activist" label that by rights, they should share with conservatives too. By not only embracing Roe, but pointing to it as the defining case of liberal constitutionalism, the Senate grandstanders only enhance the all too popular perception that liberal (but never conservative) judges routinely depart from the law, and give it far more credibility than it deserves.

The real debate in constitutional law today ought to be over the truly revolutionary nature of the conservatives' agenda, and their willingness to do exactly what they accuse the liberals of having done in Roe: depart from constitutional sources to impose their own policy preferences. But until Democrats abandon Roe as the be all and end all of constitutional decision-making, they will continue to fight an uphill battle, having yielded the intellectual high ground to those who have no just claim to that terrain.