Commentaries this weekend by former presidential candidate Patrick Buchanan and Harvard law professor Cass Sunstein* present stark appraisals of the importance of the upcoming presidential election for the survival of Roe v Wade. Buchanan and Sunstein believe it is now or never, make or break for their respective positions because of Supreme Court nominations the next president will almost certainly make.

I’m not so sure that a President McCain, however, would be willing to fight Democrats over the likely upcoming nominations. Here’s why.

The excitement of the Republican base over the nomination of Sarah Palin stems primarily from her pro-life position. Pro-life proponents see the Palin selection as affirmation of McCain’s commitment to nominating pro-life Supreme Court justices, a commitment many doubted before the Palin nomination.

It is possible, however, that McCain’s selection of Palin is merely a political decision to activate the base, though McCain has been a consistent but not an especially outspoken right to life advocate over the years. Still, it’s difficult to know the degree of his passion for the right to life position.

But is overturning Roe v. Wade such a high priority for him that he would sacrifice other priorities, such as Iraq War funding, to achieve the central aim of the pro-life movement?

Imagine the scenario if McCain were to be elected. An enraged Democratic base would force Democratic Senators, likely to remain the majority party, to confront a President McCain over judicial nominations. They would also demand an end to the Iraq war by refusing to fund it. Would President McCain secretly offer to accept Democratic approved justice nominations in exchange for war funding? Which of these two priorities do you believe is more important to Mr. McCain?

I suspect McCain would choose continuing the Iraq War over ending Roe v Wade.

McCain may not believe that he is likely to be able to run for a second term anyway, so appeasing the party’s pro-life members would not be a concern to him. And he would not fear destruction of the Republican party because the base would believe that a 2012 presidential candidate Sarah Palin would be committed to the cause if McCain faltered.

McCain, if elected, would also face a very angry and uncooperative House and Senate because of the type of campaign they believe he has waged against Obama. After presidential election defeats in 2000 and 2004, whatever civility Democrats have felt obligated to maintain would evaporate. The only possibility that McCain would have to achieve any legislative aim would be to make significant compromises.

For example, the Bush tax cuts will expire in 2010 and will require the legislature to renew them. (McCain was initially opposed to these tax cuts anyway, so how hard would he fight to get them renewed?) Who believes a Democratically controlled legislature would renew the tax cuts under almost any scenario? A McCain victory may be all that is needed to turn the Democrats into the uncompromising street fighters its base has wanted for the last several years.

So much for reaching across the aisle and a return to civility. The Straight Talk Express will never leave the station without outright concessions unacceptable to the Republican base.

Similarly, an Obama presidency, of course, would also face dilemmas. Without a newly elected filibuster-proof majority in the Senate, Obama judicial nominations would also be blocked by opponents. Ironically, Republicans would have little to lose by blocking Obama nominations; the balance of a Supreme Court reduced in number by resignation of a “liberal” justice would tip to justices opposed to Roe v Wade.

Just what Sarah Palin would want.

George Harris
KC Star Reader Advisory Panel

*links to the Buchanan and Sunstein articles are on the web site of RealClearPolitics.com