INDIANAPOLIS — It stands to be a future framed picture in Vice President Mike Pence’s office: On Monday, he was climbing the U.S. Capitol steps with 7th Circuit Judge Amy Coney Barrett of South Bend. The tall, slender judge is adjusting her necklace; the vice president is reaching into his pocket, a look of exhilaration on his face. The U.S. Supreme Court is off in the distance.
It was a day the vice president probably dreamed about for decades, particularly after he reemerged in the 1990s following two unsuccessful congressional campaigns as an ardent pro-life advocate. Throwing Roe into the “ash heap of history,” as Pence put it, has been his defining mission.
As a House member, he introduced the first bill to defund Planned Parenthood in 2009. As Indiana governor, he signed half a dozen anti-abortion bills. “We must support the confirmation of Judge Alito and other jurists who will support a strict-constructionist view of the law and make it possible once and for all to end Roe v. Wade,” Pence said in 2006 as his political ally, then U.S. Sen. Dan Coats, escorted the future Justice Samuel Alito to meet with members of the Senate.
Certainly after he made what has often been described as his 2016 “Faustian bargain” with Donald Trump. He joined the Trump Republican ticket after friends and allies warned him to stay away. He was privately shocked when the stunning upset registered in the wee hours after the election. With Trump’s upset, the potential was now there for his career goal of reshaping the Supreme Court.
With the death of Associate Justice Ruth Bader Ginsburg last month, Pence and Federalist Society allies like his longtime friend, David McIntosh, stood at the threshold of a culmination of a career goal. If Judge Barrett is confirmed in the days before the Nov. 3 election, they will have achieved a 6-3 conservative court. The Federalist Society came up with a list of potential jurists with lofty resumes that President Trump has adhered.
Pence’s legacy will be that as the Trump whisperer. “Part of it is reminding President Trump who is an important constituency,” said Curt Smith, who chairs the Indiana Family Council.
Judge Barrett becomes the third Supreme Court nomination by President Trump, following the successful confirmations of Associate Justices Neil Gorsuch and Brett Kavanaugh. All three were on the Federalist Society list presented to Trump in the summer of 2016 as he worked to gain the trust of evangelicals and social conservatives.
McIntosh, the former Indiana congressman and 2000 GOP gubernatorial nominee who now heads up Club For Growth, co-founded the Federalist Society in 1982 as a law student at the University of Chicago. One of his professors was future Justice Antonin Scalia. “In ‘82, we really felt like the minority,” McIntosh told me on Wednesday. “Folks were crying out in the darkness, ‘Hey the liberals really aren’t doing the law the right way.’ We really didn’t foresee it coming to this position. I was a big dreamer. I did see the Federalist Society taking off with hundreds of thousands of members. I really did see a jurist like Amy Coney Barrett on the court.”
“In terms of composition of more conservative, more originalist jurists as opposed to activist jurists, it has switched from 6-3 the other way with Burger and Warren, to 6-3 more traditional restraint justices and three activists,” McIntosh said of the Barrett nomination which is likely to cap a four-decade-long goal.
McIntosh predicted that Roe v. Wade will likely be altered incrementally in the short term. “I would suspect there will be more interest in making gradual shifts over making wholesale changes,” McIntosh said. “Maybe at some point they’ll conclude to just leave it up to the states completely; stop having it be a federal question.”
Smith agreed, saying, “I don’t think Roe will be struck down immediately. I wouldn’t be surprised if it is in five or six years. You can do more and regulate abortion in new ways. I wouldn’t be surprised if Roe is overturned in my lifetime. It’s so bad. I know it’s established law, but there have been times where bad decisions were overturned.”
Smith cited the 1857 Dred Scott v. Sandford decision that held the Constitution did not protect Black Americans, and the 1896 Plessy v. Ferguson case that upheld the constitutionality of racial segregation, as decisions that were overturned.
He pointed to Judge Barrett’s 7th Circuit decision to uphold Indiana’s HEA 1337 that was signed by Gov. Pence in 2016. In signing what was often described as one of the tightest abortion laws in the country, Pence said, “HEA 1337 will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry, or disability.”
“Judge Barrett ruled Indiana’s law was appropriate,” Smith said.
As for Pence’s legacy in shaping the Supreme Court, McIntosh said, “I think Mike’s view of the law and Roe is much more likely to be accepted now. I think he would agree the end result is for each state to make the end decision on what their policy should be on abortions.”
The columnist is publisher of Howey Politics Indiana at www.howeypolitics.com. Find Howey on Facebook and Twitter @hwypol.
