Michael J. Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government at the University of North Carolina Law School.
Jimmy Carter had significant impact on judicial selection in several ways. The first involved the Supreme Court. The fact that he had no Supreme Court appointments made it easier for President Reagan to build directly upon the four appointments made by President Nixon to thwart Warren Court decisions expanding minority and criminal defendants’ rights at the expense of state sovereignty.
An obvious target for Reagan was the Supreme Court’s 1973 decision in Roe v. Wade. Initially, there was no Republican backlash to the opinion. Indeed, the initial, public response to Roe was largely silence. When, for instance, the Senate held confirmation hearings on President Ford’s nomination of John Paul Stevens to replace the retiring William O. Douglas, not a single senator asked Stevens about Roe. Yet, by the time Reagan was campaigning for the presidency, the Republican platform had called for overruling Roe; and as president, Reagan made Roe a principal example of the Court’s liberalism and pledged to appoint justices who would overturn Roe, among other cases. The question is what had happened in the meantime.
The answer is Carter. Carter opposed abortion himself and did not publicly defend Roe. Throughout his presidency, he consistently opposed federal funding for abortions. At the same time, he was determined to diversify and improve the quality of the federal judiciary, which led him to put more people on the bench who were actually supportive of Roe. When Reagan condemned this practice and intensified his criticism of Roe, Carter made no response. The silence was deafening. It left Roe largely undefended (except by some Democratic congressional leaders) in public debates during the 1980 presidential election. Reagan largely occupied the void and co-opted some of Carter’s base, which had voted for him in 1976 because of his Evangelical Christian background. Carter was left in the awkward position of having his reelection depend on people who supported Roe but were unhappy with Carter because of his failure to vigorously support it. His pro-life convictions opened the door for the Republican Party to become the anti-Roe party, and the Democratic Party, partly by default, became the party of Roe....