Wall Street Journal: Which Recent Nominees Were You Talking About?

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

An article in today’s Wall Street Journal about potential Supreme Court nominee Judge Diane Wood makes the following claim: "Recent Supreme Court nominees have come before the Senate with such slim records on abortion that their views were anybody’s guess."

Say what?

Let’s review the evidence on two of our three most recent nominees:

Chief Justice Roberts questioned the very existence of the constitutional right to privacy in memoranda he wrote in the 1980s. In one memo he referred to it as the "so-called" right to privacy. We all know that the constitutional right to privacy is the underpinning for the right to decide whether to have an abortion established in Roe v. Wade.  And what about Roe?  No "slim" record there. As Deputy Solicitor General, Roberts co-authored a brief directly challenging the validity of Roe. It said Roe was wrongly decided and should be overruled and that it had no support in the text, structure, or history of the Constitution. 

Justice Alito's record on abortion is even more abundant than Chief Justice Roberts'. When he was in the Solicitor General’s office in 1985, Justice Alito volunteered to help write a brief in a Supreme Court abortion case and wrote a memo offering his own strategy for using that brief as "an opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects." Need more? Well, in Justice Alito's application for a promotion in the Reagan Administration, he wrote, "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court . . .  that the Constitution does not protect a right to an abortion."  And as a judge, he would have upheld a requirement that a woman notify her husband before having an abortion.  Luckily, the Supreme Court disagreed (thank you, Justice O'Connor).

There are more examples from both of their records, but I think the point is clear. The Wall St. Journal was just plain wrong. The only explanation for the statement is that the reporter was trying to make potential nominee Judge Diane Wood look controversial because she has a different kind of record on abortion.

So what’s the point of correcting the Wall St. Journal? It’s this: Chief Justice Roberts and Justice Alito had a clear record of at least questioning and at most actively attempting to overturn the law of the land on abortion. Yet, this did not prevent them from obtaining confirmation. Judge Wood, on the other hand, has a record demonstrating that she is willing to apply the law, as an appellate judge should, including the Supreme Court precedents on Roe v. Wade. If she is the nominee, that should be a reason for confirmation, not controversy.