Published on August 24, 2020
Senator Josh Hawley has earned attention for his recent Senate floor speech, published here at Public Discourse, in which he declared that he “will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided” and have done so “on the record, before their nomination.” (His emphasis.) As he explained, he “want[s] to see in the record clear acknowledgment that a nominee understands Roe to be the travesty that it is.”
There is much in Senator Hawley’s speech that I commend. But I respectfully submit that his proposed test for Supreme Court nominees is badly flawed.
I applaud Hawley’s forceful condemnation of Roe as “a brazen power grab by unelected justices imposing their own moral and social views on the nation.” Indeed, I condemned Roe, and called for its overruling, in very similar terms in my testimony before the Senate Judiciary Committee some years ago:
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. . . .
If the American people are going to be permitted to exercise their authority as citizens, then all Americans, whatever their views on abortion, should recognize that the Supreme Court’s unconstitutional power grab on this issue must end and that the political issue of whether and how to regulate abortions should be returned where it belongs—to the people and to the political processes in the states.
I have no objection to litmus tests of judicial philosophy (as opposed to policy positions). I am in complete accord with Hawley that Roe “is a window into the constitutional worldview of a would-be justice” and that no one who believes that Roe was rightly decided should be nominated or confirmed.
I agree with Hawley that pro-life senators should not keep quiet on Roe. He rightly recognizes that senators have a special opportunity to exert their influence before a president nominates a Supreme Court justice. The very small number of Republican senators who support Roe have often been vocal in this pre-nomination phase. By being quiet, too many pro-life senators have allowed their pro-Roe colleagues to have disproportionate impact. It’s not the job of pro-life senators to make it easy for a president to select a nominee, and it’s entirely proper for them to push hard for a nominee who will oppose Roe.
Where Hawley’s Test Goes Wrong
So where do I think Hawley goes wrong?
In order to be worthwhile, a litmus test must be reasonably calculated to distinguish effectively among Supreme Court candidates—to exclude those who should be excluded and to include for further consideration those who should be included. Hawley’s test fails to meet this measure.
For starters, Hawley’s test—Has a potential nominee explicitly acknowledged, on the record and before being nominated, that Roe was wrongly decided?—isn’t nearly as clear, nearly as easy to apply, as you might first think. Try to figure out which of these statements would pass his test.
- “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
- “Roe wrongly fashioned a regime blanketing the subject of abortion, a set of rules that displaced virtually every state law then in force.”
- “The courts have no business enforcing alleged rights on which there is no societal agreement, on matters ranging from the abortion cases, at one extreme, to school dress codes and things of that sort.”
- “The Catholic Church’s teachings on the value of human life from conception to natural death provide a sure guide to the Christian life.”
I think that we can rule out Statement 4, as it makes no reference to Roe. But what about the other three statements? All three would seem to indicate the speaker’s belief that Roe was wrongly decided. But whether they pass Hawley’s test would seem to depend on how much the purpose of his test—“to see in the record clear acknowledgment that a nominee understands Roe to be the travesty that it is”—informs how he applies it. None of the three statements clearly conveys the speaker’s belief that Roe was a “travesty.”
A larger problem with Hawley’s test is that it fails to separate the sheep from the goats. As it happens, Harvard law professor Laurence Tribe made Statement 1 in a 1973 law-review article. Ruth Bader Ginsburg made Statement 2 (with trivial alterations) in a speech months before President Clinton nominated her to the Supreme Court. And a law professor by the name of Antonin Scalia made Statement 3 (again, with trivial alterations) in a debate in 1978—and that appears to have been his only public statement about Roe before his nomination to the Court eight years later.
To be clear, I am not maintaining that Senator Hawley would have given a pass to Tribe or Ginsburg upon consideration of their broader record on the constitutional status of abortion. But a test that doesn’t clearly distinguish between fervent supporters of a constitutional right to abortion and Justice Scalia isn’t much of a test.
But it gets worse. Clarence Thomas wouldn’t have passed Hawley’s test. (He had made no public statements about Roe before he was nominated.) Nor would Samuel Alito. (During his confirmation process, it emerged that as part of his confidential application to become a deputy in the Office of Legal Counsel he had expressed the view that “the Constitution does not protect a right to an abortion,” but that statement was not “on the record” and there is no reason to think that he ever anticipated that it would become public.)
More broadly, the operating lesson that ambitious conservative lawyers sensibly drew from the failure of Robert Bork’s nomination to the Supreme Court in 1987 and from the filibuster campaign that Senate Democrats launched against George W. Bush’s federal appellate nominees was to avoid speaking out on contentious legal issues. I made my own decision long ago not to care about being confirmable to a judgeship, but I very much respect those who made a different decision, and I’m glad they did.
Among the dozens of judges that President Trump has appointed to the federal appellate courts are many who I think would make outstanding Supreme Court justices. Who among them would pass Hawley’s test? To take but one example: Seventh Circuit judge Amy Coney Barrett, a favorite of pro-lifers, signed a letter before becoming a judge endorsing Catholic teaching on “the value of human life from conception” (essentially Statement 4 above), but so far as I’m aware she has never expressed the view that Roe was wrongly decided.
It’s no answer to say that Hawley could make ad hoc exceptions to his test. He has declared that he would apply his test to any Supreme Court nominee. To suggest that he might allow exceptions is to take his test neither literally nor seriously.
Under the terms of Hawley’s test, a candidate who thirty years ago wrote an op-ed decrying Roe in his college newspaper would pass the test, but someone who has litigated the pro-life cause for the past two decades without expressing her personal views on Roe wouldn’t. What sense does that make?
A deeper problem with Hawley’s test is that it dodges the really important issue. As Hawley notes, even lots of liberal scholars recognize that Roe was wrongly decided. Nearly everyone who identifies as a legal conservative surely does as well. The critical divide is between those who would vote to overrule it and those who wouldn’t. It’s worth asking: Why not probe that divide directly? Why doesn’t Hawley declare that he will vote only for a Supreme Court nominee who has explicitly stated that Roe should be overturned?
One answer is that if the pool of acceptable Supreme Court candidates were limited to those who have expressed, on the record, the opinion that Roe should be overruled, that pool would be vanishingly small. Another possible answer is that the nomination of anyone in that pool would be unduly controversial. But both of these answers would seem to be a surrender to the political status quo that Hawley criticizes rather than a challenge to it.
What If Hawley’s Test Had Been in Effect?
Political realities can be confronted and transformed, but they cannot simply be imagined away. Insofar as Senator Hawley is criticizing how the process of nominating and confirming Supreme Court justices under Republican presidents has operated, it’s worth considering what would have happened if his test had been in effect.
When two Supreme Court seats opened up in 2005, the Senate had a strong Republican majority of 55 senators. But among those 55 Republicans were half a dozen or so who were hostile to or shaky on the pro-life cause, including Senate Judiciary Committee chairman Arlen Specter. What’s more, 60 votes were needed to overcome a filibuster threat from Senate Democrats.
Neither John Roberts nor Samuel Alito would have met Hawley’s test. Nor, to my knowledge, would any of the other short-list candidates. So whom should President George W. Bush have nominated? And how would those persons have been confirmed?
Fast-forward to 2017, when President Trump took office with the vacancy arising from Justice Scalia’s death a year earlier. Republicans had a narrow 52-48 margin in the Senate, giving powerful leverage to pro-Roe senators Susan Collins and Lisa Murkowski. The 60-vote filibuster threshold, which Senate Democrats had abolished in 2013 for lower-court nominations, remained in effect for Supreme Court nominations. Of the short-list candidates, only one—Eleventh Circuit judge William Pryor—had a clear record of opposition to Roe. I admire Judge Pryor greatly and wish very much that he were Justice Pryor. But Democrats would surely have launched the same filibuster against Pryor—or any other candidate who was perceived as anti-Roe—that they launched against Neil Gorsuch. The support among Senate Republicans for Gorsuch was so widespread that they managed (barely) to unify to override, by simple majority vote, the rule allowing the filibuster and went on to confirm Gorsuch. It’s farfetched to think that the necessary votes would have been there in response to a filibuster of a Pryor nomination. So whom should President Trump have nominated? And how would that person have been confirmed?
In 2018, when Justice Kennedy resigned from the Court, the Republican margin in the Senate had become a razor-thin 51-49. Thus, although the filibuster had been abolished, Collins and Murkowski had the ability to deprive a nominee of a party-line majority. President Trump might have taken the gamble of winning over a pro-life Democrat and having Vice President Pence cast the tie-breaking vote in favor of confirmation of a nominee who met Hawley’s test. But who was available to be nominated? And what reason is there to think that such a gamble would have succeeded?
One could argue, to be sure, that if Hawley’s test had long been in effect, there might have been more candidates who would have seen fit to meet it. But the ambitious strivers who might have paid it lip service are hardly the candidates who could be relied on to vote to overturn Roe.
Hawley’s test promises no more success in the future than it would have had in the past. Instead, I think that it would likely prove in practice to be either a bluff or a folly. Let’s assume that a Republican president nominates someone who doesn’t pass Hawley’s test but who, Hawley believes, would be a solid vote to overturn Roe. (If you’d like, assume it’s a longtime friend of Hawley’s who has discussed Roe extensively with him.) Would Hawley, and any other senators he’s persuaded to embrace his test, really vote against that nominee? Even if their votes might defeat the nomination and lead the White House to strike a deal with Senate Democrats on a new nominee who appears much more disposed to leave Roe untouched?
The flaws in Senator Hawley’s test invite an exploration of the deeper challenges of identifying, nominating, and confirming Supreme Court candidates who will overturn Roe. That is the topic of my Public Discourse essay tomorrow.
Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to National Review Online’s Bench Memos blog on constitutional law and judicial nominations.