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The real beginning of the SCOTUS scrums

It’s usually said that the bad times began in 1987 with President Ronald Reagan’s nomination of Robert Bork, but the start of the confirmation problem came much earlier.

(Image: Sebastian Pichler/

When did confirming someone for a seat on the Supreme Court become a traumatic ordeal for the candidate and the nation? How did we get to the point where a nominee’s intelligence, character, and experience no longer suffice? Once again, these questions have forced themselves on the country’s attention in the confirmation process of Judge Amy Coney Barrett for the opening created by the death of Justice Ruth Bader Ginsburg.

Now, too, the novel coronavirus has added further uncertainty to the process, with several senators developing covid-19. But the problematic nature of Supreme Court confirmation was a reality long before the virus came along.

It’s usually said that the bad times began in 1987 with President Ronald Reagan’s nomination of Robert Bork. Bork, a conservative legal scholar and federal judge, former U.S. Solicitor General, and former Acting Attorney General, was greeted with a ferocious mix of loathing and alarm by Senate liberals who determined to go all-out to defeat him.

Out front in the anti-Bork charge was Sen. Edward Kennedy (D-MA), who famously said on the Senate floor that Bork’s America was, among other things, a place where “women would be forced into back-alley abortions” and “blacks would sit at segregated lunch counters.” Bork, a reserved man who later converted to Catholicism, said simply, “There was not a line of that speech that was accurate.”

The Senate Judiciary Committee, chaired at the time by Sen. Joseph Biden (D-DE), sent Bork’s nomination to the full Senate with the recommendation that it be defeated, and the Senate obliged, voting 58-42 to reject Bork.

Now the unhappy consequences of that disgraceful episode are visible again in the case of Judge Barrett. And here it’s become apparent that the real start of the confirmation problem came earlier and lies even deeper than the Bork affair. To be precise, the origin of this ongoing stain on the confirmation process and much else in our national life was the Supreme Court’s January 22, 1973 Roe v. Wade decision legalizing abortion.

Roe did many things, most of them bad. In the present context, it can rightly be seen as having placed a question that does not admit of any compromise at the center of an ongoing, notably rancorous national debate. What question is that? Just this: Is it right or is it wrong deliberately to take the life of a nascent human being?

A seven-member majority in Roe v. Wade unaccountably said it was right, in the process shouldering aside legal precedent and practicing what Justice Byron White, who with Justice William Rehnquist was one of the two dissenters, called “an exercise of raw judicial power.” Millions of Americans then and since have rightly rejected–and today continue to reject–the ill-considered embrace of abortion by those seven justices.

It would be a mistake, too, to blame the present situation on the recalcitrance of prolifers. On the other side of this debate, pro-choice people have turned acceptance of Roe into a litmus test of loyalty to their cherished ideal of moral libertarianism, a vision summed up and celebrated in the magical word “choice” that has come to be applied to other issues besides abortion in our never-ending culture war.

Here’s hoping Judge Barrett, an eminently qualified jurist, makes it onto the Supreme Court, despite efforts to apply an illegitimate religious test to her nomination. And here’s hoping, too, that before much longer that court will acknowledge the destructive folly of Roe and take responsible steps to repair the damage it has done.

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About Russell Shaw 292 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, Eight Popes and the Crisis of Modernity, and, most recently, The Life of Jesus Christ (Our Sunday Visitor, 2021).


  1. Roe did many things, most of them bad. In the present context, it can rightly be seen as having placed a question that does not admit of any compromise at the center of an ongoing, notably rancorous national debate. What question is that? Just this: Is it right or is it wrong deliberately to take the life of a nascent human being?

    Most of them bad? Please explain to us just what Roe v Wade did that wasn’t bad.

    Nascent human life? My dictionary defines “nascent” this way:

    nascent |ˈnāsənt, ˈnasənt|
    (especially of a process or organization) just coming into existence and beginning to display signs of future potential: the nascent space industry.

    A human being is a human being from conception. It is never “just coming into existence” if that means it exists as something that is not a human being and then becomes one as it develops, just like a “nascent space industry,” to use the dictionary example, is still a space industry even if it is a brand new space industry. In the same way a human being is a human being even if it is a brand new human being. If a being doesn’t begin as a human being it will never be a human being.

    Mr, Shaw, I am not nitpicking about your choice of words just to be a nuisance. We have to be careful about the adjectives we use in describing newly conceived human life. The effort to dispel the lethal bigotry of our times requires that of us. The adjective “black” was used by bigots to deny human beings the full protection of law during American slavery, just as the adjectives “Jewish” and “institutionalized” were used by bigots to deny human beings the full protection of law in Nazi Germany. Black human beings are fully human beings. Jewish and institutionalized human beings are fully human beings. Nascent human beings are fully human beings; if they aren’t they never will be human beings. “Is it right or is it wrong deliberately to take the life of an innocent human being?” is the essential question. And the answer to that question is obvious. The choice of adjectives makes a huge difference.

    For Christians, since we know God became a man and willingly suffered a humiliating and agonizing death out of love for us two-thousand years ago, it should be obvious that there isn’t a nine-month gap — from conception to birth — in His eternal love for each of us. Every child deliberately aborted is the murder someone precious to God. His loving plan for that cherished child of His is thwarted. He grieves. So should every Christian.

    • Did i miss your response when Obama was denied to pick a supreme court judge? Why was he not allowed to have the same as Trump? i am against abortion but no one seems to be able to answer that question or they seem to have forgotten or choose to. Maybe just maybe they pick and choose what and who for what they want. Wow what a concept! I wish ALL were allowed that; its not up to you to play God, God makes ALL the choices not you or the govt. Also are your thoughts the same of an unborn to a born? ex: a police officer shoots a black man because it was “my life or his life”? Another hypocrisy a life is a life unborn or born. Please speak up for all do not pick and choose oh wait; I pray we all make our decision on what GOD wants after all God gave us free will not man but man is playing God! Spread the word of God because God is the one who will judge us not man! This is why we lose our young adults preach the word on all issues going on such as abortion, hatred, racism, police shootings, immigration, the evil. If the church were to follow our Pope she would see all, instead of allowing the hate and antichrist in the WH. How can the church not speak up? The church should not be unbias only one choice GOD!

      • Obama was NOT “denied an opportunity to pick a Judge.” He nominated a judge, Merrick Garland, which is his constitutional role in the process. The senate has the right and the privilege to advise and consent on that nomination. They declined to consent. They are not obliged to assent to the President’s nomination you know. There was nothing illegitimate about that situation. A Democrat’s could have stood not he floor of the Senate at any time and moved that the Senate vote on Garland’s nomination. No one ever did that. The Democrats enjoyed using Garland as a club more than anyone.

    • Suddenly MIT is concerned about ethics of using freshly killed babiesfor research???
      Oh how I wish the wellbeing and safety of children in the womb was their concern…
      I’m guessing they’re only concerned because they are trying to put Trump in a bad light, but considering he’s running against Joe “abort at will” Biden and Kamala “baby near my ovary to me is really scary” Harris, I don’t see how that’s possible in this context…

    • See

      Embryonic Stem-Cell Research Reaches Moral, Medical Dead End

      An excerpt:

      Advances with ethically sourced adult stem cells have already helped more than 1 million patients, according to a recently published review paper by David Prentice, a research director for the Charlotte Lozier Institute and a former professor of medical and molecular genetics at Indiana University School of Medicine.

      He calls adult stem cells the “true gold standard of regenerative medicine,” while nearly two decades of media hype and the infusion of billions of research dollars on stem cells culled from human embryos have produced exactly zero published reports of validated success in a single patient.

      What MIT is doing with that article, is what the anti-life MSM often does: promote the idea that “legal” baby murder (of course they don’t call it that) must continue because of the medical benefits derived from embryonic stem cell research.

      Even if science had derived useful information from the outrageous Nazi medical experiments, that wouldn’t have justified those experiments.

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