The retirement of Justice John Paul Stevens means that in coming months we'll have another hearing on a Supreme Court nominee. But it's not likely to be the sort of hearing we got used to in the two decades after Edward Kennedy declared war on Robert Bork in 1987.
Nomination fights in those years centered on the issue of abortion. Many Republicans hoped and most Democrats feared that Republican nominees would vote to overturn Roe v. Wade. Democrats launched ferocious and often unfair attacks on nominees like Bork, Clarence Thomas and Samuel Alito. Republicans defended them warily, but refrained from launching similar attacks on Democratic nominees Ruth Bader Ginsberg and Stephen Breyer.
These were arguments over a political issue of little practical impact but great moral content.
A reversal of Roe v. Wade would allow states to criminalize abortion, but only a few -- Utah, South Dakota, Louisiana, Guam -- would have done so; abortion would have remained widely available. But the feminist left and the religious right believed that important moral principles were at stake.
This was a period when the demographic variable that most highly correlated with voting behavior was religion, or degree of religiosity, and the issue that seemed to be most critical to voting choices was abortion. Given the court's activism in deciding abortion cases, it was inevitable that nominations would be hard fought over the abortion issue.
Those days are over. We didn't hear much about abortion when Barack Obama appointed Sonia Sotomayor last year, and not just because the president was replacing one pro-Roe justice with another.
More important, the public's issue focus has changed. And while the issue of whether to criminalize abortion tended to favor Democrats, the political issues that now raise constitutional questions tend to favor Republicans.
Those are issues raised by the big government programs of the Obama administration and Democratic congressional leaders, in particular by the health care legislation they jammed through Congress despite huge public opposition last month.
One is the constitutionality of the health care bill's mandate to purchase private health insurance. The federal government has never before commanded citizens to buy a commercial product. Could the government command you to buy breakfast cereal?
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