The Front-Runners on Roe
What Bush's shortlist thinks about abortion.
In 1998, Michael Luttig (U.S. Court of Appeals for the 4th Circuit) granted a stay that had the effect of allowing a Virginia ban against partial-birth abortion to go into effect. After the Supreme Court struck down Nebraska's parallel law in Stenberg v. Carhart, Luttig reversed his earlier decision and lifted the stay, which had the effect of throwing out the Virginia restrictions. At that point, he explained that at the time of his initial decision to let the Virginia ban stand, he understood Casey to be "a decision of super-stare decisis"—meaning super respect for precedent—"with respect to a woman's fundamental right to choose." But he also believed that the court would uphold the partial-birth abortion bans, or at least defer to Virginia's interpretation limiting the reach of its statute.
The possible moderate: In 2000, as a judge on the Texas Supreme Court, Alberto Gonzales (now U.S. Attorney General) took part in two decisions that applied a state law allowing a teenage girl to have an abortion without notifying her parents if she could prove to a judge that she was "mature and sufficiently well informed." In one of the cases, Gonzales voted to allow a 17-year-old girl to have an abortion under the statute, though he was careful to say that he was simply following the directive of the legislature. "While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view," Gonzales wrote. In the second case, Gonzales held that the teenager petitioning the court had not shown that she had "thoughtfully considered the alternatives" to abortion, but sent her back to the trial court for another chance.
The question marks: There's little in the judicial opinions of short-listers Judge Edith Brown Clement (U.S. Court of Appeals for the 5th Circuit) and Judge J. Harvie Wilkinson (U.S. Court of Appeals for the 4th Circuit) to indicate their positions on abortion.
Implications: You can never say for sure how someone will vote when they get to the Supreme Court—that's the beauty of judicial independence and life tenure. But based on their past statements and decisions, Roberts, McConnell, Garza, and Jones look like good bets to vote to regulate abortion more tightly and, if they get the chance someday, perhaps to overturn Roe v. Wade. Alito would probably do the same. How far Luttig would go is less clear—his statement of respect for Casey is clinical and drained of emotion, which makes it harder to tell. Gonzales' opinions in the Texas cases suggest that he doesn't much like the idea of teenagers having abortions without telling their parents. But in those cases and others, he has been inclined to respect previous Supreme Court decisions. That makes him the potential nominee most likely to follow O'Connor when it comes to Roe—and it explains why religious conservatives are so hostile to his potential nomination.
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Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at emilybazelon@gmail.com or on Facebook or Twitter.
Photographs of: John Roberts by Mark Wilson/Newsmakers, Michael McConnell courtesy of the United States Courts 10th Judicial Circuit, Emilio Garza courtesy of Emilio Garza and the United States Courts 5th Judicial Circuit, Samuel Alito courtesy of Samuel Alito, Michael J. Luttig courtesy of Michael J. Luttig, Alberto Gonzales by Joe Raedle/Getty Images, and Edith Brown Clement courtesy Edith Brown Clement and the United States Courts 5th Judicial Circuit.