Hawley Is Right to Demand Supreme Court Nominees Explicitly Oppose Roe

Senator Josh Hawley (R-Mo.) took to the Senate floor late last month “to revise and extend” his remarks about the United States Supreme Court from mid-June. He asked a pointed question: “Is this a constitutionalist court?”

His answer was an emphatic “No.” In fact, this court is the antithesis of what it should be. 

“When looking at the results of this last term, the only thing I can say for certain is that, in the words of the late Justice Scalia, ‘the imperial judiciary lives,’” Hawley said. “This is a court that freely rewrites congressional statutes [Bostock v. Clayton County], that has protected the worst left-wing precedents of earlier years [take your pick], that in the final week of its term gave away half the state of Oklahoma [McGirt v. Oklahoma].”

But what made his short speech so remarkable is the ferocity with which he took aim at Roe v. Wade, the infamous 1973 decision in which the Supreme Court, by a 7-2 vote, held that nested within the 14th Amendment’s Due Process Clause is a “right to privacy” that protects a woman’s right to procure an abortion.

Hawley did not tiptoe around Roe’s deeply immoral holding, something Republicans do constantly because to do otherwise is considered “imprudent” and “in poor taste.” He did not mince words: “Roe is an illegitimate decision. It has no basis in the Constitution. None. It has no basis in the law. None of the Constitution’s specific and enumerated guarantees of privacy even begin to legitimize the taking of innocent human life.” 

He went on, explicitly linking Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896) to Roe: “Dred Scott and Plessy and Roe are abusive, morally repugnant decisions that wounded the soul of this nation. They dishonored this nation’s fundamental faith in the dignity and worth of every person.”

It’s about time a Republican politician spoke with such clarity and vigor on abortion—the issue that has most divided our country, leaving it a “house divided.” Were this the extent of his rhetoric, Hawley would deserve much praise. But he did not stop there. Instead, he proposed a tangible course of action that all Republican senators should take up—that is, if they are as serious about actually tackling abortion as they claim to be in their periodic campaign ads begging for money and votes.

For Hawley, “Roe is a window into the constitutional worldview of a would-be justice.” Because if a nominee believes “Roe was rightly decided, then there just is no two ways about it: [he is] a judicial imperialist” who “believe[s] that unelected judges should have the power to enact their own social views . . . regardless of what the Constitution says or what we the people have expressed preference for, voted for, and enacted into law.” Such a nominee shows obvious disdain for the American system of self-government, the notion “that sovereignty rests with We the People—that it should be the people who are in charge.”

For these reasons, Hawley bluntly stated: “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.” By “explicitly acknowledged,” he means, “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Hawley’s rejection of rote, mechanistic proceduralism in this area is important. Proceduralism is good and valuable when the system in which it operates is healthy. But when the surrounding legal environment has been dragged leftward and corrupted nearly beyond recognition by those who once detested and still detest it, a slavish devotion to that warped procedure merely ratifies, cements, and legitimizes all manner of erroneous and unjust deviations from the original and ratified status quo. In other words, it disrespects the sovereignty of the people. When hewing to procedure is the highest good, it is impossible to arrest the operation of the leftist jurisprudential ratchet.

But others do not see the flag Hawley has planted in such a positive way.

Carrie Severino, otherwise known for her defense of the rule of law and of Justice Brett Kavanaugh’s nomination, finds Hawley’s “new test” to be “manipulative false advertising” that “won’t work.” Why not?

Because David Souter, Anthony Kennedy, and Sandra Day O’Connor all to varying degrees criticized Roe and then got cold feet when the time came to scrap it—but Clarence Thomas, who “testified in his confirmation hearing that he could not recall debating or stating the merits of Roe even in private discussion, and added that he had not decided its merits in his own mind,” is now “the Supreme Court’s most vocal critic of Roe.” And, in any case, Hawley has no mechanism to enforce nominees’ pre-hearing assurances.

Severino faults Hawley for not going far enough, that is, for not “ask[ing] nominees to commit to overrul[ing] Roe” and for not explaining how he would “forc[e] them to live up to that commitment.” Nonetheless, she’s completely sure that were he to do so, he “would make a mockery of the law by creating the expectation that future justices must pledge certain outcomes as a condition of their confirmation.”

That all sounds nice and “conservative” (especially with an obligatory Scalia quote from Planned Parenthood v. Casey tossed in). But it’s actually a deeply hollow posture, not to mention an exercise in special pleading for this one case, Roe—the “sun” around which our legal culture orbits and which has distorted even mundane legal process (read Justice Neil Gorsuch’s dissent in June Medical Services, L.L.C. v. Russo, which catalogs this so-called  abortion distortion). Sadly, Roe is now doing the same even to non-judicial rhetorical attempts to extricate ourselves from its gravitational pull.

If Roe really is as heinous a ruling as Hawley contends, and I’m sure Severino believes it is, then why is it wrong for the senator—who as a lawmaker is permitted (obliged, really) to have positions on substantive issues affecting the common good and individual rights—to inquire into a nominee’s legal position vis-à-vis whatever issues are important to his constituents, not to mention the nation as a whole?

Answer: It’s actually entirely appropriate. And if judicial nominees don’t like it, that’s too bad; they won’t get Hawley’s vote.

Imagine it’s 1898, and a senator takes to the floor and excoriates Plessy v. Ferguson, saying, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Plessy was wrongly decided.

Who among us would find this objectionable? How could we, when the decision was so obviously wicked and wrong from the day it was handed down? And, most importantly, why is Roe any different—is it not at least as unjust as Plessy?

It’s clear that Hawley is right to demand this anti-Roe posture from nominees under his consideration, not least because “Roe is the reason we have a legal conservative movement to begin with” as well as “why generations of religious conservatives [have] vote[ed] for Republican presidents.” To delay any longer skewering Roe, even as we cower behind talk of “methods,” “process,” and “umpires,” is to commit voluntarily to play judicial politics with one hand tied behind our back. It’s foolish behavior that needs to end.

Nominees who haven’t made it clear that Roe is an abomination before they are on the doorstep of life tenure and immense power, as a general rule, lack the fortitude and moral clarity required to be a justice of the Supreme Court (and, I’d add, judge of any federal court).

Kudos to Hawley for his leadership here. His colleagues should join him, potential nominees should take note, and the country should be optimistic that better days are ahead.

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About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

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