What Might Have Been: Roe v. Wade at 35—and the Man Who Could Have Reversed It

January 18, 2008 | by | Topic: The Content of CharacterPrint Print

Editor’s Note: In this special “V&V Q&A” remarking upon the 35th anniversary of Roe v. Wade, Dr. Warren Throckmorton, a respected national voice on the abortion issue and a fellow at the Center for Vision & Values at Grove City College, interviews Dr. Paul Kengor, the executive director of the Center. In his new biography of Judge Bill Clark, Kengor for the first time revealed information on how Clark in June 1981 rejected an opportunity to sit on the U.S. Supreme Court, leaving the vacancy to be filled by Sandra Day O’Connor. For Clark, and for President Ronald Reagan, it was a fateful move—one that ultimately meant that Roe v. Wade would be upheld rather than overturned. Here, Dr. Throckmorton interviews Dr. Kengor on this remarkable case of “what might have been.”

Throckmorton:
The main theme of your book is Clark’s role in undermining the Soviet Union. Aside from what Clark did in the Cold War, you talk about “what might have been” in the Culture War, and the difference Clark could have made for the pro-life cause. Talk about that.

Kengor: In June 1981, Supreme Court Justice Potter Stewart announced that he was stepping down. Ronald Reagan, the new president, needed a replacement. At that time, Bill Clark was serving as Reagan’s deputy secretary of state, fresh off a decade of service in the California court system, where Governor Reagan had appointed him all the way to the California Supreme Court.

Reagan called Clark into the Oval Office and asked him if he wanted to be considered for the Stewart vacancy. Clark says Reagan did not “offer” him the job on the spot but asked him if he wanted to be “considered.” Regardless of the exact wording, the job was Clark’s for the taking. If he had said yes, Reagan would have looked no further. He and Clark were extremely close, like brothers, total kindred souls.

Anyway, Clark said no. He said he enjoyed what he was doing for Reagan’s foreign policy, and he never came to Washington to die there. He wanted to serve Reagan faithfully for a few crucial years and then return to California to get back to his family and ranch.

When Clark said that, President Reagan pulled a note card from his coat pocket—which included only a few names, with Clark’s at the top—and said, “That’s what I thought you’d say, Bill.” Reagan scratched off Clark’s name.

If Clark had said yes, he would to this day be sitting on the Supreme Court. In fact, given his poor health—he is now 76 years old with Parkinson’s—he would probably right now be in the news amid speculation he would soon be resigning. The headlines would be consumed with talk of Judge Clark’s replacement by President George W. Bush.

Instead, the job went to Sandra Day O’Connor, who was sworn in September 25, 1981.

Throckmorton: Would Judge Clark have voted to overturn Roe v. Wade?

Kengor:
Absolutely. Bill Clark would have been the swing vote that overturned Roe v. Wade, particularly through the 1992 case, Casey v. Planned Parenthood. He would not have voted the way Sandra Day O’Connor did.

Furthermore, we must be mindful of the influence he could have had not only through his own vote but possibly on Justice Anthony Kennedy, a Reagan pick that came after O’Connor. Clark knew Kennedy well. They regularly had lunch together when they were judges in San Francisco, Clark on the state Supreme Court and Kennedy on the federal court. Kennedy, a fellow conservative Catholic with Irish roots, was known to be pro-life, a key reason why Reagan nominated him. Kennedy, however, is a man easily influenced, including by the pro-choice culture in Washington and on the high court. He became a reliable vote for abortion-rights crusaders.

Had Clark served on the high court with Kennedy, the vote on Casey could have flipped from 5-4 against Casey to 6-3 in favor. At the very least, the vote would have switched to 5-4 in favor.

Throckmorton: I wonder if Bill Clark perhaps refused the Supreme Court because he felt sure Reagan would appoint another person with a high regard for unborn life. Did he ever express his opinion of the O’Connor appointment?

Kengor: Clark seemed a little embarrassed when we discussed this. Once O’Connor was the frontrunner, Reagan asked Clark to interview her. They spoke for an hour-and-a-half. He reported back to Reagan that O’Connor seemed fine: “qualified, competent, capable.” The president made notes on his yellow legal pad. A grinning Reagan said, “Well, Bill, what did you talk about with her?” Clark smiled, “Well, we talked about horses and dogs and cows and kids and life.” Reagan chuckled, “That’s what I figured.”

Clark knew that Attorney General William French Smith was screening O’Connor, and assumed that Smith would cover key social-legal issues such as abortion and capital punishment. Did he? I can’t answer that. Either way, Sandra Day O’Connor was sworn in a few weeks later.

By the way, she was largely a moderate, but her pivotal swing vote for the pro-choice side ensured there would be no limits placed on America’s runaway abortion policies.

Throckmorton: Did Judge Clark write publicly on abortion? Are there quotes which capture his views?

Kengor: Judges, even former judges, are very cautious in discussing past opinions. Sticking to the issue at hand, however, I can tell you his principal moral objection to Casey v. Planned Parenthood. He was appalled that O’Connor and Kennedy effectively took the position that Roe v. Wade had become a way of life, engraved in the culture, and therefore ought to be left alone. Such distorted moral reasoning, he said, was done by defenders of slavery in the 19th century. Had this reasoning been applied after the infamous Dred Scot case, black Americans would never have been considered full-fledged human beings—just as innocent unborn babies go unrecognized and thus unprotected in the decisions of many contemporary justices.

Throckmorton: What are some key exemplars of Reagan’s pro-life legacy?

Kengor: One of Clark’s ongoing missions is to stress this pro-life legacy. Reagan was not as successful on abortion legislatively and judicially as he wanted. He began changing the court system by seeking to install pro-life judges, though he made some bad calls. Yet, he constantly spoke in support of human life. Do not underestimate that importance of the presidential bully pulpit, and Reagan used it constantly to denounce abortion in the strongest terms, including very high-profile occasions like State of the Union Addresses, where he said that abortion was a wound on the American conscience, and that “America will never be whole as long as the right to life granted by our Creator is denied to the unborn.”

Clark has within reach a 45-page single-spaced document of quotes from Reagan on abortion, printed from the official Presidential Papers, which is the product of a personal special request he made to the staff of the Reagan Library. He uses that document when he talks to the press, and distributes it when necessary. That’s also true for a small book on abortion that Reagan authored as president, titled Abortion and the Conscience of Nation, published in 1984 by the Human Life Foundation, with prefaces and afterwords by Clark, Malcolm Muggeridge, and Mother Teresa.

Throckmorton:
Many current Republican candidates want the mantle of Reagan. Who among them could be expected to carry Reagan’s pro-life perspective forward?

Kengor: Though this is not an endorsement, I would have to say that Mike Huckabee is the strongest pro-lifer. That said, basically all the current Republican crop is pretty good when it comes to being pro-life, with Rudy Giuliani the obvious exception. Alas, it looks like Rudy’s position on life issues has been devastating to his candidacy, revealing, I believe, that a Republican presidential hopeful must be pro-life—the polar opposite situation of a Democratic presidential hopeful, who must be pro-choice.

Paul G. Kengor

Paul G. Kengor

Dr. Paul Kengor is professor of political science and executive director of The Center for Vision & Values at Grove City College. His latest book is 11 Principles of a Reagan Conservative. His other books include The Communist: Frank Marshall Davis, The Untold Story of Barack Obama’s Mentor and Dupes: How America’s Adversaries Have Manipulated Progressives for a Century.

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