Pickmust denounce Roe? Please just say it
In a floor speech in July, Sen. Josh Hawley, R-MO., issued an ultimatum on future Supreme
Court fights.
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe vs. Wade was wrongly decided,” he said. He would require on-therecord evidence that the next Republican nominee “understands Roe to be the travesty that it is.” Absent that, “I will not support the nomination.”
The day after Ruth Bader Ginsburg died, Hawley reiterated this commitment and called on his fellow Republican senators to do the same.
Others on the religious right may impose a similar litmus test. Social conservatives felt betrayed when, in June, Neil Gorsuch, Donald Trump's first Supreme Court appointee, wrote in a majority opinion that it's illegal under the 1964 Civil Rights Act to fire someone for being gay or transgender. They were doubly dejected when Chief Justice John Roberts cast the deciding vote in a decision striking down a Louisiana law that would have all but regulated legal abortion out of existence in the state.
At this bleak moment for reproductive rights, a declaration from the nomineemight at last end the absurd charade that allows conservative Supreme Court nominees to obscure their opposition to legal abortion. Just over six weeks before the election, it shouldmake clear to everyone what is at stake.
“Hawley wants to make sure where they stand, if they disagree with Roe vs. Wade,” said Nancy Northup, president of the Center for Reproductive Rights. “The 70-plus percent of the American public that supports Roe vs. Wade would like to know that, too.”
The custom of nominees concealing their intentions regarding Roe began after 1987, when a bipartisan majority of senators rejected President Ronald Reagan's Supreme Court nominee Robert Bork. Bork didn't just oppose Roe; during his hearing he discussed his skepticismof the 1965 Supreme Court ruling striking down bans on contraceptives, which established the right to privacy Roe is based on.
“In the wake of Robert Bork, almost every nominee, on the Republican and Democratic side, has been a little more cagey about their views of Roe,” said Melissa Murray, a New York University law professor.
The reticence around Roe has essentially institutionalized hypocrisy as part of the confirmation process. As Northup points out, during his confirmation hearing in 1991, Clarence Thomas simply described Roe vs. Wade without taking a clear position on it. Less than a year later, he joined a dissent in a pivotal abortion case that said Roe was “wrongly decided, and that it can and should be overruled.”
Because nominees typically refuse to speak about Roe in depth, the debate about abortion during confirmation hearings seems to take place in code.
Thismakes the conversation about the future of legal abortion abstract and hard to follow. Traditionally, the right has liked it that way. For years, Hawley said in his Senate speech, religious conservatives have been told: “Don'tmess up the Supreme Court nomination process by raising Roe. It's imprudent. It's in poor taste. It will divide our coalition.” Instead, conservatives were urged to talk about “process, about methods, maybe throw in some talk about umpires.”
There's a reason for this: Roe is popular. While many Americans support
abortion restrictions, a Pew poll last year found 7 in 10 oppose seeing Roe overturned. As David Wasserman of the Cook Political Report wrote Monday, more than a fifth of Trump's 2016 voters in battleground states leaned pro-choice.
Still, Hawley is in a position to extract concessions. The two remaining prochoice Republican senators, Susan Collins and Lisa Murkowski, have said they're opposed to the Senate voting on a Trump nomination before the election. Trump's nominee might not get away with doing what Brett Kavanaugh reportedly did, telling Collins that Roe is “settled law.”
That would be for the best. “It would actually be more galvanizing for Democrats if the Republicans would just either do what they say they want to do, overturn Roe and face the political backlash that that would engender,” said Murray, “or have their nominee just say explicitly, ‘I don't believe there is a constitutional right to abortion.' ”
Republicans have supported Trump through nearly four years of stupefying corruption to bring us to this precipice, when states might once again force women to give birth against their will. If Democrats can't force Trump's nominee to be clear about the rights he or she intends to take from us, maybe Hawley can.