But what if the accusations are found to have merit? Or what if—as is more likely—the FBI investigation proves inconclusive or incomplete, and regardless of whether he is confirmed, Judge Kavanaugh remains under a cloud of suspicion? In the first instance, the pro-life movement will have compromised itself by supporting a former sexual predator. That it did so for an ethical aim—ending abortion—would not absolve it, for the end does not justify the means.
Prudence and the confirmation process
The easily forgotten fact that the confirmation process is supposed to evaluate one’s present fitness to decide cases does not alter this conclusion. True, one’s behavior as a minor over three decades ago is hardly the chief criterion. His legal knowledge, fairness, and integrity as a judge are surely more relevant. Under the standard being applied to Judge Kavanaugh, a good part of Congress and our judiciary should probably be disqualified. One wonders whether those agitating against Kavanaugh were equally adamant that President Clinton should be impeached, or that the late Senator Edward Kennedy should be removed from office.
Such hypocrisy exposes this so-called confirmation process as little more than a contest of raw political power between Democrats and Republicans, liberals and conservatives. It is not the impartial evaluation that it purports to be. But this means that for the pro-life movement to identify with one of the two warring camps, and thus participate in this travesty, may not be prudent.
A likely (and unfair) case
What about the more likely case, where the issue of sexual misconduct remains unresolved? I would argue that there, too, the pro-life movement should not support Judge Kavanaugh. But before I outline the reasons, let us look at the aims of this movement.
As I understand it, the chief aim of the pro-life movement is to create a culture where human life is protected from conception to natural death, and where abortion is unthinkable or at least universally condemned. This means patiently and thoroughly educating society and raising its ethical consciousness. It also means listening to women’s legitimate concerns, such as irresponsible fathers and the plight of working mothers. It means building from the bottom up, not from the top down. A Supreme Court decision overturning Roe v. Wade would be the endpoint, not the start, of the process.
The pro-life movement will not convince American society of the rightness of its cause by siding with Republicans or conservatives—much less with President Trump. It will certainly not persuade American women by identifying with an accused sexual predator, even if his alleged misdeeds remain only in the realm of speculation. This is unfair to Brett Kavanaugh. But it is the social reality in which any advocacy movement must operate.
Doing, and hoping, for the best
But isn’t this a concession to the lynch-mob mentality of his accusers? Not really. No one is suggesting that the pro-life movement join the anti-Kavanaugh juggernaut. But it is entitled to abstain until all suspicion is cleared. If that doesn’t happen, it has no moral obligation to support him. After all, the movement’s principal aim—to persuade Americans to respect life—will hardly be served by praising a man whom, rightly or wrongly, many women regard as a villain.
Some will object that Brett Kavanaugh is our best hope for overturning Roe v. Wade. That is not necessarily so. Whatever his private opinions about abortion, he is a judge, and a judge decides specific cases, not general issues. As a Supreme Court justice, he would not be asked to decide whether abortion is good or bad. He would not be able to simply cross out Roe v. Wade. He would be presented with concrete controversies where he would decide, on the basis of the facts and the law, whether a statute violates the constitution. It is possible that, given the right kind of appeal from the right kind of lower-court decision regarding the right kind of statute, an opportunity would arise to overturn part or even all of Roe v. Wade. But there can be no guarantee that a conscientious judge will rule in any particular way. What is more important is that the Court, compelled by the facts and issues of a case to reconsider Roe v. Wade, and persuaded by competent pleadings to rethink its logic, should see its legal and factual flaws (which are separate from its ethical faults) and strike down its erroneous holdings. One doesn’t have to be a Catholic or a conservative to do this; any fair and learned judge will do.
Building a jurisprudence of life
Yet overturning Roe v. Wade would still not prevent pro-abortionists from blocking state anti-abortion laws by other means. A successful bottom-up approach by the pro-life movement, however, would create a social climate where the Supreme Court would not be called upon to decide the constitutionality of a state statute limiting access to abortion because no such statutes would be necessary; or if necessary, none would be challenged; or if challenged, none would be overturned.
Such an approach, however, would mean finding ways to forge solidarity with broad sectors of our society. We need to build a jurisprudence of life. That requires engaging with those of our adversaries who are open to dialogue—not demonizing or alienating them by engaging in a partisan slugfest or defending a controversial candidacy that, whatever the outcome, is likely to discredit the pro-life cause.