Liberals and Democrats alike are worried that the President will nominate someone who will vote to overturn Roe v. Wade. They needn't worry. That's not likely to happen. In fact,
the only litmus test the President is likely to employ is whether a candidate promises *not* to overturn Roe. Here's why.Bush must decide if he wants to overturn Roe or preserve the Republicans as the majority party. With Roe gone, the pro-choice movement will be energized and Republican politicians will have to state on the record whether they want to criminalize abortion. Women, libertarians, and moderates may bolt the party, destroying Bush's winning coalition. Republicans may dislike Roe, but they may dislike losing elections even more.A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly, for example, by devising new procedural rules that make it difficult to challenge abortion regulations in federal court, by upholding restrictions on particular medical procedures like partial birth abortion, and by further limiting abortions for minors and poor women. Moderates and independents may not like these changes, but such rulings will be much less likely to induce wholesale defections from the Republican coalition than wiping Roe v. Wade off the books. The latter is a simple, easy to understand result that people can get angry about and rally around. Procedural limitations on abortion, by contrast, are hard to explain to voters and therefore risk less political danger for the Republicans.
Chipping away at Roe slowly not only allows the party to keep moderates and independents from bolting, it also preserves a hated symbol for the party's base of religious conservatives to struggle against. As long as Roe remains law, religious conservatives can point to it as a example of what is wrong with America and with a liberal activist judiciary (which is, of course, increasingly staffed by conservative Republican Presidents!). Thus, the reverse litmus test not only holds the party's winning coalition together, it's also good practical politics.
http://balkin.blogspot.com/2005/07/reverse-litmus-test.htmlThis was written in July 2005. Looks more and more true as time goes on.
It's all about politics.