A critical opening now exists on the Supreme Court. The typical formula in such scenarios would be for the Democratic president to nominate someone who is a moderate on economic issues and reliably pro-choice on abortion in order to garner enough support from both Democrats and Republicans, something that is likely to happen any day now. This, along with “a broad pro-business consensus within the upper ranks of the legal profession,” is why the Court is so strongly pro-business by historical standards.
But Republicans are threatening to block any nominee President Obama puts forward. Some may wish to continue this blockade if Hillary Clinton is elected president but Republicans retain the Senate. A vacancy of many years or multiple vacancies would raise questions about the durability of our constitutional system (and the norms that allow it to function) in an era of bitter partisanship, hyperpolarization, and political dysfunction, where divided government is not at all uncommon. The critical role of the Court as a countermajoritarian protector of minority rights, insulated to a certain degree from fleeting democratic passions and excesses, may be lost entirely—something we should perhaps be acutely inclined to preserve when a demagogue like Donald Trump keeps pilling up primary wins that seemed highly unlikely just a year ago.
If having another pro-choice justice on the Court and a radical change in the norms of American democracy are both seen as unacceptable, what can the pro-life movement do? Pledge to support President Obama if he agrees to nominate a pro-life progressive.
The pro-life movement can show that it is not a pawn used by the Republican Party to protect corporate interests. It can show that it truly values the lives of unborn children above all else. By pledging to unite behind a nominee who would allow for the advance of social and economic justice (while recognizing the legal rights of unborn children), the movement would give President Obama and Democratic elites a stark choice: put forward a nominee who would uphold action to defend the poor, weak, and vulnerable, while undermining plutocracy, or reveal that a commitment to abortion-on-demand is the preeminent value of Democratic elites—more important than universal healthcare, gun control, voting rights, campaign finance reform, union organizing, and every other issue.
If the pro-life movement puts their collective pressure to bear on Republicans and they refuse to support a pro-life nominee, the movement will realize that they are being used to serve other interests. If the GOP supports the pro-life movement’s plan, but President Obama refuses to nominate a pro-life progressive, the president would be the one responsible for the dangerous gridlock and complete politicization of the Court.
This is a make-or-break moment for the pro-life movement. It’s time for the movement to unite and deliver a truly pro-life justice.