Contraception & the GOP Debate

Statement of CFJ Executive Director Curt Levey:

During tonight’s GOP debate, moderator George Stephanopoulos asked Mitt Romney “Do you believe states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” Knowing that Romney and most Americans would not support a government ban on contraceptives, Stephanopoulos’ apparent goal was to trip up Romney, who believes that Roe v. Wade – in which the Supreme Court relied on a supposed constitutional right to privacy – was wrongly decided.

For non-lawyers, a general constitutional right to privacy was created by the Court in its 1965 Griswold v. Connecticut decision, which struck down an unenforced state law prohibiting contraception.

In addition to Romney, Rick Santorum and Ron Paul were drawn into the debate over Stephanopoulos’ question. Answering this question is perilous only if one skips over the distinction between the legal issue – was Griswold rightly decided as a matter of constitutional interpretation – and the political question – should states be prohibited from banning contraception as a matter of federal policy, presumably expressed through a federal statute or constitutional amendment.

Perhaps Stephanopoulos was trying to blur this distinction. Or perhaps – like most of the “living Constitution” crowd – he does not fully comprehend the distinction. In any case, we wish the GOP contenders had taken the opportunity to make the distinction clear, because it’s at the heart of the debate over judicial activism.

Opponents of judicial activism believe that judges’ policy views – say, on the desirability of a general right to privacy – should play no role in constitutional interpretation – for example, in determining whether the Constitution’s "penumbras" and "emanations" imply a right to privacy, as Griswold concluded. Believers in a “living Constitution,” on the other hand, advocate that judges should update the meaning of the Constitution to incorporate the evolving values of society (at least those of elite society).

Santorum, Romney & Judges

Statement of CFJ Executive Director Curt Levey:

We congratulate Rick Santorum and Mitt Romney for their shared victory in Iowa last night and offer some brief thoughts on the sort of judicial nominations we can we expect from these men if one of them becomes president.

Although some conservatives have questioned Romney’s ideologically diverse judicial nominations as governor of Massachusetts, consider the context. Romney’s judicial nominations were made in the face of a Democrat-dominated Governor's Council that had the power to reject those nominations.

It is fairer to look at more recent indications and there we find reason for encouragement in the people Romney named to his Justice Advisory Committee in August. Its list of 63 members reads like a who’s who of the nation’s most accomplished conservative lawyers, including committee co-chairs Judge Robert Bork, Harvard Law School professor Mary Ann Glendon, and former FCC chair Richard Wiley. Assuming Romney relies on these same advisors when selecting judges, conservatives are likely to be happy with his judicial picks.

Rick Santorum has not been in a position to nominate judges but he had an outstanding track record on the judges issue as a U.S. Senator. We are confident that his approach to judicial nominations will reflect the passionate commitment to constitutionalism demonstrated by that record.

Writing in 2005, Third Branch Conference chairman Manny Miranda described Santorum’s leadership on the judges issue:

"No Republican senator has done more to make the confirmation of John Roberts possible, because no Republican senator is more responsible for making the judiciary issue a national electoral winner for Republicans, or for making colleagues understand its significance to constituents. No GOP senator did more to lay the groundwork for … effectively ending the Democratic filibusters. … The end result of Mr. Santorum's strategy was a net GOP gain of six seats in two elections."

Santorum’s efforts to lay the groundwork began with his organization of the 2003 ''anti-filibuster,'' which focused public attention on Democrats’ abuse of the judicial filibuster by keeping the Senate in session for 40 straight hours over the course of two nights. In November 2006, the New York Times agreed with Miranda’s assessment of the senator’s leadership, calling Santorum the “chief Republican proponent of underlining Democratic opposition to Mr. Bush's judicial choices.”

A few weeks earlier, Santorum became the first senator to sign the Fair Judiciary Oath, committing him to work for “a fair confirmation process.” In addition to CFJ and the Third Branch Conference, the sponsoring Fair Judiciary Oath Coalition included the American Center for Law & Justice, the American Conservative Union, the Family Research Council, the Judicial Confirmation Network, and other groups.

After leaving the Senate, Santorum spoke out against the confirmation of Sonia Sotomayor to the Supreme Court. Citing Sotomayor’s statement about the “better conclusion[s]” of a “wise Latina” judge, her controversial decision in the New Haven firefighters reverse discrimination case, and her claim that an appeals court is “where policy is made,” Santorum explained that

“Bias, elitism, the politics of separating people into classes and racial and ethnic pigeonholes are not what one would expect from a nominee of a president who promised to get us past that.”

###

While CFJ has not endorsed any of the presidential candidates, we will continue to comment on their approaches to the judges issue. Most recently, CFJ’s Curt Levey wrote about Newt Gingrich’s proposals for judicial reform in a December 23 Wall Street Journal op-ed.