Image: Ruth Bader Ginsburg
Evan Vucci  /  AP file
Justice Ruth Bader Ginsburg, appointed by President Clinton in 1993, is now 75 years old.
By Tom Curry National affairs writer
msnbc.com
updated 8/29/2008 6:03:50 PM ET 2008-08-29T22:03:50

The refrain in many of the Democratic leaders’ responses to Sen. John McCain’s choice of Alaska Gov. Sarah Palin as his running mate: Roe v. Wade, Roe v. Wade.

The 1973 Supreme Court decision nationalizing a woman’s right to get an abortion was a top-of-mind issue for top Democrats.

Voters, beware, the Democrats' message seemed to be: Palin is not in favor of abortion rights.

The Democrats seemed to be concerned that some voters might be under the misapprehension that Palin was a pro-choice woman — or that because she is a woman, it might help McCain get the votes of pro-choice women.

The message echoed and re-echoed:

  • “Gov. Palin shares John McCain's commitment to overturning Roe v. Wade,” said Obama spokesman Bill Burton in a statement issued before McCain had stepped out on the stage in Dayton, Ohio, with Palin.
  • “She shares John McCain’s commitment to overturning Roe v. Wade,” agreed House Speaker Nancy Pelosi two hours later.
  • “Gov. Palin and John McCain are a good match because they both want to overturn Roe v. Wade,” chimed in Ellen Malcolm, a Hillary Clinton adviser and president of the Democratic group Emily’s List, which backs women abortion rights candidates.
  • “The last thing women need is a president — and vice president — who are prepared to turn back the clock on women's rights and repeal the protections of Roe v. Wade,” said Cecile Richards, the president of the Planned Parenthood Action Fund, which backs mostly Democratic candidates.

If McCain were to win the election but not serve out his term, it would be Palin nominating justices for any Supreme Court vacancies.

Warnings from Clinton and Gore
But well before the Palin news broke on Friday, Sen. Hillary Clinton and Al Gore had reminded Democrats at the Denver convention that while some say “it’s the economy, stupid” is the defining issue of the 2008 campaign, no campaign is ever entirely dominated by one theme.

Slideshow: Sarah Palin: Republican star for 2012? For a slice of the electorate, social issues are likely to be decisive.

“The Supreme Court in a right-wing headlock,” Clinton said in her Tuesday night speech.

The implication was clear for veterans of the Senate battles of the Bush era over Supreme Court nominees: Democrats have waited since 1994 to see one of their own nominated to the high court.

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To see the prize of future high court appointments slip out of their hands now would be agony for them.

The first Clinton high court appointee, Ruth Bader Ginsburg, is now 75 years old, three years older than McCain. Ginsburg is second in age on the court only to liberal Republican Justice John Paul Stevens, who is 88.

Gore reinforced this high court concern in his warm-up speech for Sen. Barack Obama on Thursday night at the Invesco Field event in Denver.

“When as many as three Supreme Court justices could be appointed in the first term of the next president, and John McCain promises to appoint more Scalias and Thomases and end a woman's right to choose, it is time for a change,” Gore declared, referring to Justices Antonin Scalia and Clarence Thomas.

Scalia and Thomas believe that Roe was wrongly decided and that nothing in the Constitution protects a right to get an abortion.

Thirty-odd years ago, early in his congressional career as a House member from Tennessee, Gore, too, opposed abortion rights, as did and do many Democratic House members from the South. But Gore had become pro-choice by the late 1980s. Pro-choice forces now are dominant in the Democratic leadership.

A reassuring message
While Palin would not likely have any role in choosing Supreme Court nominees if McCain wins the presidential election, his choice of her as a running mate sent a reassuring message to anti-abortion forces in the Republican Party.

Tony Perkins of the Family Research Council noted that Palin and her husband had learned while Palin was pregnant with her son, Trig, born in April, that the baby would be born with Down's syndrome.

“In an era when over 80 percent of Down's syndrome babies are aborted, the Palins feel they have been extremely blessed by God to raise 'an absolutely perfect' son,” Perkins said. “Gov. Palin continues to use her testimony to advance protections for unborn children.”  

The question of whether McCain's nominees to the high court would move to repeal Roe v. Wade is by no means clear.

Nominees are not asked for an explicit commitment on Roe, said former Reagan Justice Department official Doug Kmiec, who supports Obama.

For a president, Kmiec said, the question is: “Will I get a nominee who will keep his word to me in the vetting process, if any word is actually given?”

Overturn Roe — or a diversion?
Kmiec scoffed, “We all know that dance: Nobody actually admits they ask the (Roe) question and the question doesn’t get asked and it doesn’t get answered, and therefore the nominees get on the bench and they do what they want.”

So is Roe really likely to be reversed if McCain is elected? Kmiec thinks not, and thinks the “whither Roe?” debate is a tiresome diversion.

“This is an issue that is enormously distorted in the public mind,” Kmiec said as he attended the Denver convention Wednesday.

He thinks it is wrong to assume that Chief Justice John Roberts and Associate Justice Alito would vote to repeal Roe.

But the election-year fact remains: Democrats feel they’ve waited too long for a chance to have a Democratic president replace Stevens or some other high court retiree.

They want nothing to stand in the way of Obama becoming the man who picks the justices.

So "get out the vote" includes getting out the pro-choicers. And Palin may help to do that.

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