Supreme Court Watch: Johnsen's Withdrawal Raises Pro-Choice Eyebrows

The results are in: President Barack Obama will throw you under the bus to avoid a debate about reproductive rights. This bodes ill for his next nomination to the Supreme Court.

Once upon a time, America was riding high on the election of a pro-choice president who seemed to win his party's nomination by out-progressiving the competition. Early in his presidency, Obama openly discussed his pro-choice views. On his 100th day in the White House, President Obama borrowed an argument intimately familiar to those of us who defended Roe v. Wade from its last attack in South Dakota, saying, "I think [women] are in a better position to make these decisions, ultimately, than members of Congress or a President of the United States — in consultation with their families, with their doctors, with their clergy."

In that speech, President Obama expressly identified himself as pro-choice. But the question remained: would he defend reproductive rights when times got tough?

That question was answered last Friday. With Justice John Paul Stevens' retirement announcement seizing the nation's attention, keen legal observers noted another development shedding light on the president's unwillingness to pick even the easiest fight to defend reproductive rights: the withdrawal of Dawn Johnsen's nomination to a key Justice Department post.

Johnsen's nomination languished in the Senate for 14 months before she withdrew from consideration on Friday. She was Obama's pick to the Office of Legal Counsel (OLC), which — under President George W. Bush — provided the administration's legal analysis justifying torture. The withdrawal of Johnsen's nomination was deeply disappointing. The New York Times editorialized that Johnsen "was the ideal candidate to re-establish the Office of Legal Counsel as a source of scrupulous legal analysis after its complicity in some of the worst excesses of the Bush years." So why was her nomination stalled?

Johnsen's confirmation had the public support of 59-to-60 senators, suggesting that breaking a filibuster was all but assured. But the administration failed to push "the ideal candidate" over Republican objections about Johnsen's views on executive power and — yep, you guessed it — abortion. Johnsen's service as legal director for the National Abortion and Reproductive Rights Action League (NARAL) 20 years ago drew the enmity of socially conservative senators, although the OLC has zero to do with reproductive rights issues.

Instead of standing up for reproductive rights and, once more, defending his pro-choice views, President Obama chose the politically expedient path and let Johnsen twist in the wind. We should anticipate that he avoids this quandary with his next Supreme Court nomination by selecting a candidate without strong pro-choice credentials.

Considering the rumored shortlist of candidates, this means you should place your money on D.C. Circuit Judge Merrick Garland. Republicans are baiting Obama to select Garland, who is seen as the most conservative of the names floated for the job, and appears to have no record on abortion. With the previous high court vacancy filled by Sonia Sotomayor, diversity plays less in the political calculus this time around.

Federal appellate judge Diane Wood's previous opinions on reproductive rights, on the other hand, mark her as a target of anti-choice activists eager to reverse Roe. Solicitor General Elena Kagan has also drawn the ire of social conservatives for both her opposition to anti-LGBT discrimination and supporting public funding of women's medical decisions, including abortion. As for other candidates being whispered about in the corridors of D.C., it is safe to discount these recent additions to the list, which seem more about projecting diversity and interest group-appeasement, than actually reflecting the administration's thinking.

Reproductive rights fans, I am sorry to be the messenger. It pains me to say it, but this administration appears utterly unwilling to spend political capital on a woman's right to choose or on legal nominations. With that in mind, get ready to welcome Justice Merrick Garland to the Supreme Court. Let us hope that, as it develops, his reproductive rights jurisprudence is more progressive and respectful of precedent than anti-choice activists anticipate.

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