How the Fate of Roe Might Swing on a Failed Supreme Court Nomination and an Unlikely President Trump

Just after 8:00 A.M. on a warm October morning in 2005, President George W. Bush and his General Counsel, Harriet Miers, stepped into the Oval Office and before a gaggle of cameras and microphones to make a surprise and historic announcement.

Following the death of Chief Justice William Rehnquist earlier that summer, and Justice Sandra Day O’Connor’s announced retirement, President Bush made clear his intent to nominate the former Democrat and his longtime friend to the High Court.

“In selecting a nominee, I’ve sought to find an American of grace, judgment and unwavering devotion to the Constitution and laws of our country,” Mr. Bush stated. “Harriet Miers is just such a person.”

Conservatives were stunned. Liberals seemed pleased.

“I have to say without any qualification that I’m very happy that we have someone like her,” Senate Democrat Harry Reid told reporters.  He then referred to Ms. Miers as “very personable, very genuine, somebody that answers her phone calls immediately.”

As the first woman to be president of the Texas bar association, Harriet Miers had long ago earned the respect and admiration of President Bush. But with no judicial experience, few clues on her judicial philosophy and previous donation to Vice President Al Gore’s presidential campaign in 1988 – bipartisan opposition against her nomination grew.

After three weeks and three days of tortured debate and fierce controversy, Ms. Miers withdrew her nomination.

“I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interests of the country,” she wrote President Bush.

Just four days later on Halloween, President Bush nominated Samuel Alito – a tough appeals court judge and the celebrated son of an Italian immigrant.

In making the announcement from the White House, President Bush observed: “Judge Alito is one of the most accomplished and respected judges in America, and his long career in public service has given him an extraordinary breadth of experience.” Justice Alito was officially confirmed on January 31, 2006.

It may well be premature to officially label Justice Samuel Alito as the author of a Dobbs’ decision finally overturning the tragic and chilling Roedecision of 1973 – but with no Harriet Miers’ withdrawal in 2005, Samuel Alito’s ascent to the Supreme Court would have been unlikely, if not impossible.

And with no Justice Alito, and the very real likelihood of a more moderate jurist in Harriet Miers in his seat on the court – we’re very likely looking at a 5-4 decision by Chief Justice John Roberts upholding Roe.

Indeed, everything matters. That’s because everything effects everything else.

If 107,000 voters in just three states had voted differently back in 2016, Hillary Clinton would have become president – and not Donald Trump.

And with no President Trump, there would be no Justice Gorsuch, Justice Kavanaugh or Justice Barrett – three members of the court who appear poised to join Justice Alito and Justice Thomas in overturning Roe.

It was the Puritan preacher Thomas Brooks who once wrote, “The sovereignty of God is that golden scepter in His hand by which He will make all bow, either by His word or by His works, by His mercies or by His judgements.”

Of course, God’s sovereign authority doesn’t mean everything turns out the way we want things to turn out. But it means everything turns out the way He wants things to turn out.

And that is a very good thing.

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