Missouri Republican Senator Josh Hawley once clerked for Chief Justice John Roberts. But after Roberts joined with the liberal wing of the Court recently in overturning a Louisiana pro-life law, the senator has had enough disappointment from Republican-appointed justices. He won’t vote for the confirmation of any future Supreme Court nominee unless they are already on the record as condemning the consequential 1973 Roe v. Wade decision as bad law.
In an interview with The Washington Post on Sunday, Hawley said, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.”
Hawley, 40, is the youngest member of the Senate, a Yale Law School graduate and former Attorney General for the state of Missouri. He defeated the incumbent Democrat Senator Claire McCaskill in 2018 after condemning Roe v. Wade as “one of the most unjust decisions in judicial history.”
Most importantly, following his 2018 election victory, Hawley sits on the Senate Judiciary Committee, which is charged with vetting judicial nominees. Votes in the committee these days typically split along party lines, especially where Supreme Court justices are concerned, so Hawley’s threat to withhold a vote or even vote “no” on a Republican nominee for the high court will be making waves on both sides of the aisle.
Could Hawley block a Republican nominee without an anti-Roe track record in a committee vote? There have been times in the last few years where Republicans only carried a one-vote majority on the Judiciary Committee, so an abstention might result in a tie vote, and a “no” vote would put the opposition in the majority in such a situation.
The answer is technically “no,” as the Supreme Court is the one judicial venue for which a Judiciary committee vote is advisory rather than binding, according to the committee’s own rules. So even with a close vote where Hawley abstains or votes “no” on such a candidate, the nominee will still advance to the Senate floor for a full, majority vote. Still, the specter of losing even one vote in a close contest can throw the confirmation process into a frenzy, as the Kavanaugh hearings remind us.
But what about Hawley’s main point? Should conservatives establish a litmus test for SCOTUS nominees on Roe? He implies that there doesn’t need to be similar tests for other cases from the past since a nominee’s position on Roe will reveal how they approach the judicial process.
“Roe is central to judicial philosophy,” Hawley said in the Post interview. “Roe is and was an unbridled act of judicial imperialism. It marks the point the modern Supreme Court said, ‘You know, we don’t have to follow the Constitution. We won’t even pretend to try.’”
Assuming Hawley’s premise is correct, how many potential Supreme Court nominees have track records of opposing Roe? The senator thinks there are “many” potential nominees who will fit the bill. However, most conservative judges in the lower courts with an eye to future appointment possibilities have learned from history to avoid making sweeping negative statements about Roe, following the 1987 SCOTUS confirmation fiasco involving the late Judge Robert Bork. The late judge, universally regarded as a brilliant jurist, willingly offered his opinion to senators that Roe was wrongly decided, only to see his nomination defeated in part because of it in a Democrat-dominated Senate.
It remains to be seen whether Sen. Hawley’s convictions get tested anytime soon. As court watchers often note, the oldest justice, Ruth Bader Ginsburg, is now 87 and has suffered several bouts with cancer and is currently undergoing chemotherapy due to a relapse. Justice Stephen Breyer will be 82 in a couple of weeks. Justice Clarence Thomas is 72. None of those justices, however, have indicated they are ready to step down.
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