2000 Presidential Results (By 2000 Presidential Results (By County)County)

The Hypothetical The Hypothetical ““SuccessfulSuccessful”” Rehnquist Rehnquist

CourtCourtTherefore, after Clarence Thomas won Therefore, after Clarence Thomas won

approval from the Senate in 1991, the approval from the Senate in 1991, the Court would have had the following Court would have had the following makeup (in order of appointment): Byron makeup (in order of appointment): Byron White, Harry Blackmun, John Paul White, Harry Blackmun, John Paul Stevens, Scalia I (replacing O’Connor), Stevens, Scalia I (replacing O’Connor), William Rehnquist, Scalia II (his actual William Rehnquist, Scalia II (his actual appointment), Scalia III (replacing appointment), Scalia III (replacing Kennedy), Thomas I (replacing Souter), Kennedy), Thomas I (replacing Souter), and Thomas II (his actual appointment). and Thomas II (his actual appointment).

Roe v. WadeRoe v. Wade in the Reagan in the Reagan YearsYearsBeginning at 1980 convention, Beginning at 1980 convention, Republicans clearly articulated an Republicans clearly articulated an uncompromising position on abortion; one uncompromising position on abortion; one that not only called for the end of that not only called for the end of Roe v. Roe v. Wade, Wade, but which advocated— via a but which advocated— via a constitutional amendment—the constitutional amendment—the “restoration” of the fundamental “right to “restoration” of the fundamental “right to life for unborn children.” life for unborn children.”

In 1984, convention delegates approved In 1984, convention delegates approved language that took this pro-life stance language that took this pro-life stance even further, supporting “legislation to even further, supporting “legislation to make clear that the Fourteenth make clear that the Fourteenth Amendment's protections apply to unborn Amendment's protections apply to unborn children.”children.”

Reagan`s Comment during Reagan`s Comment during a 1984 Presidential Debatea 1984 Presidential Debate

““I believe that until and unless someone I believe that until and unless someone can establish that the unborn child is not can establish that the unborn child is not a living human being, then that child is a living human being, then that child is already protected by the Constitution, already protected by the Constitution, which guarantees life, liberty, and the which guarantees life, liberty, and the pursuit of happiness (sic) to all of us.”pursuit of happiness (sic) to all of us.”

George H.W. Bush`s George H.W. Bush`s PositionPosition

In 1988, the platform’s language was virtually In 1988, the platform’s language was virtually unchanged from four years earlier. Both the unchanged from four years earlier. Both the `84 and `88 platforms also added: “We `84 and `88 platforms also added: “We applaud President Reagan's fine record of applaud President Reagan's fine record of judicial appointments, and we reaffirm our judicial appointments, and we reaffirm our support for the appointment of judges at all support for the appointment of judges at all levels of the judiciary who respect traditional levels of the judiciary who respect traditional family values and the sanctity of innocent family values and the sanctity of innocent human life”human life”

““My position on the issue of abortion is clear. I My position on the issue of abortion is clear. I support a constitutional amendment that support a constitutional amendment that would reverse the Supreme Court's decision in would reverse the Supreme Court's decision in Roe v. Wade. I also support a human life Roe v. Wade. I also support a human life amendment with an exception for rape, incest, amendment with an exception for rape, incest, or where the life of the mother is threatened.”or where the life of the mother is threatened.”

Bush`s 1992 Knights of Bush`s 1992 Knights of Columbus StatementColumbus Statement

““And there’s a national tragedy: More than And there’s a national tragedy: More than a half a million abortions in this country a half a million abortions in this country every year… Seven times I have ignored the every year… Seven times I have ignored the polls and acted on what I believed is polls and acted on what I believed is fundamental principlefundamental principle and vetoed… and vetoed… abortion legislation. And I promise you abortion legislation. And I promise you again today, no matter the political price, again today, no matter the political price, and they tell me in this year that it’s and they tell me in this year that it’s enormousenormous, I am going to do what I think is , I am going to do what I think is right. I am going to stand on my right. I am going to stand on my conscience and let my conscience be my conscience and let my conscience be my guide when it comes to matters of life.”guide when it comes to matters of life.”

2000 Platform Plank on 2000 Platform Plank on Affirmative ActionAffirmative Action

““We believe rights inhere in individuals, We believe rights inhere in individuals, not in groups. We will attain our nation’s not in groups. We will attain our nation’s goal of equal opportunity without quotas goal of equal opportunity without quotas or other forms of preferential treatment. or other forms of preferential treatment. It is as simple as this: No one should be It is as simple as this: No one should be denied a job, promotion, contract, or denied a job, promotion, contract, or chance at higher education because of chance at higher education because of their race or gender. Equal access, their race or gender. Equal access, energetically offered, should guarantee energetically offered, should guarantee every person a fair shot based on their every person a fair shot based on their potential and merit.”potential and merit.”

George H.W. Bush`s George H.W. Bush`s Reaction to Reaction to LeeLee ““I am very disappointed by the Supreme Court's I am very disappointed by the Supreme Court's

decision in decision in Lee v. WeismanLee v. Weisman. The Court said that a . The Court said that a simple nondenominational prayer thanking God simple nondenominational prayer thanking God for the liberty of America at a public school for the liberty of America at a public school graduation ceremony violates the first graduation ceremony violates the first amendment. America is a land of religious amendment. America is a land of religious pluralism, and this is one of our Nation's greatest pluralism, and this is one of our Nation's greatest strengths. While we must remain neutral toward strengths. While we must remain neutral toward particular religions and protect freedom of particular religions and protect freedom of conscience, we should not remain neutral toward conscience, we should not remain neutral toward religion itself. In this case, I believe that the religion itself. In this case, I believe that the Court has unnecessarily cast away the venerable Court has unnecessarily cast away the venerable and proper American tradition of nonsectarian and proper American tradition of nonsectarian prayer at public celebrations. I continue to prayer at public celebrations. I continue to believe that this type of prayer should be allowed believe that this type of prayer should be allowed in public schoolsin public schools. . ””

Two Observations: Failure and Two Observations: Failure and SuccessSuccess

Failure: No Failure: No BrownBrown-like decision from the -like decision from the Rehnquist Court. Instead, it produces Rehnquist Court. Instead, it produces decisions such as decisions such as Casey Casey (1992),(1992), Lee Lee (1992),(1992), Grutter Grutter (2003),(2003), and and Lawrence Lawrence (2003). This (2003). This result occurs despite similar situations:result occurs despite similar situations: In 1954, Democratic presidents had appointed In 1954, Democratic presidents had appointed

13 of the last 14 justices. 13 of the last 14 justices. In 1992, Republican presidents had appointed In 1992, Republican presidents had appointed

the last 11 justices (counting Rehnquist the last 11 justices (counting Rehnquist twice).twice).

Success: Republicans continue to win by Success: Republicans continue to win by emphasizing “judicial” concerns whereas the emphasizing “judicial” concerns whereas the Democratic Party split when its leaders Democratic Party split when its leaders adopted positions consistent with the Warren adopted positions consistent with the Warren Court’s rulings (most importantly in 1968)Court’s rulings (most importantly in 1968)

A Tentative Argument about A Tentative Argument about Conservative Republican Conservative Republican Successes and FailuresSuccesses and Failures

Why hasn’t the Rehnquist Court issued a Why hasn’t the Rehnquist Court issued a BrownBrown--like decision?like decision? Greater awareness among Republican Party Greater awareness among Republican Party

leaders that ideological success on the Court leaders that ideological success on the Court threatened to produce electoral failure by threatened to produce electoral failure by disrupting the GOP’s coalition disrupting the GOP’s coalition

Leading Republicans also believed that Leading Republicans also believed that confirmation battles (ala Robert Bork) aided the confirmation battles (ala Robert Bork) aided the Democratic Party by highlighting the GOP’s Democratic Party by highlighting the GOP’s extremes (exacerbated by the presence of a extremes (exacerbated by the presence of a Democratic Senate after the 1986 elections) Democratic Senate after the 1986 elections)

In turn, on three occasions, Reagan and George In turn, on three occasions, Reagan and George H.W. Bush selected “confirmable conservatives” H.W. Bush selected “confirmable conservatives” (i.e., O’Connor, Kennedy, and Souter) to avoid (i.e., O’Connor, Kennedy, and Souter) to avoid such battlessuch battles