Rumors have swirled that President Donald Trump could get the chance to nominate a third member of the Supreme Court later this year. One Republican senator — and member of Judiciary Committee — is making it clear that any nominee sent to the upper chamber must oppose Roe v. Wade to get his support.
In an interview with the Washington Post Sunday, Missouri Sen. Josh Hawley said he would not support any nominee who was not publicly on record — before being nominated — that Roe, which declared women had the right to abortion nationwide, was “wrongly decided.”
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley told the Post.
And because nominees are often lauded by individual senators for what the would-be justices tell them in private one-on-one conversations in their personal offices, Hawley made it clear that any nominee that he would support will have to have made their stance clear before being presented to the Senate.
“By explicitly acknowledged, I mean on the record and before they were nominated,” he said.
Knowing a nominee’s position on Roe has been a leading issue in Senate hearings for years. The left wants judges who will say that Roe is “settled law” that the high court should not change … ever — a sort of super stare decisis. Which means pro-Roe judges can share how they would rule on cases related to the infamous abortion ruling.
However, any nominee who might consider Roe to be “wrongly decided” is considered prudent for not sharing that viewpoint publicly if he wants to be confirmed.
Hawley has had enough of that.
“I don’t want private assurances from candidates,” the senator said. “I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. 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 position does not come as much of a surprise: Most political watchers expect him to make a run for the 2024 Republican presidential nomination, and it’s important to establish his conservative bona fides now.
Also, Hawley once served as a Supreme Court clerk for Chief Justice John Roberts, who has drawn the ire of many conservatives who have felt betrayed by his record while on the high court — from his oft-criticized Obamacare ruling to his most recent controversial decision rejecting a Nevada church’s plea to host more parishioners.
Roberts set off pro-lifers in June with his deciding vote in Medical Services v. Russo, which struck down a Louisiana law requiring abortion doctors to have admitting privileges at local hospitals. The chief justice made a stare decisis argument to support his vote, saying his position to strike down the Louisiana law was based on a 2016 ruling that struck down a similar Texas law (Whole Woman’s Health v. Hellerstedt); however, Roberts was a dissenting vote in the Texas case.
It was at Roberts’ 2005 nomination hearing that the late Sen. Arlen Specter famously asked Roberts if he thought Roe would qualify for “super stare decisis,” a term that the then-nominee correctly noted wasn’t a thing in Supreme Court opinions … “yet.” Specter later pressed Roberts again, asking if “Roe might be a super-duper precedent,” but Roberts, who said he did support stare decisis, wouldn’t share his thoughts on the merits of Roe itself.
And since the Roberts hearings, explicit public support for protecting Roe has been paramount to the left.
Hawley wants that to change going forward.
“Roe is central to judicial philosophy,” he told the Post. “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.'”
His position likely won’t thrill pro-choice fellow Republican senators, namely Susan Collins (Maine) and Lisa Murkowski (Alaska), who have long opposed SCOTUS picks they believed were hostile to Roe and notably supported Trump nominee Brett Kavanaugh after he assured Collins that he agreed with Roberts on Roe.
But Hawley isn’t playing.
“This standard, for me, applies to Supreme Court nominees, whether they’re a sitting judge or whatever,” he said. “If there is no indication in their record that at any time they have acknowledged that Roe was wrong at the time it was decided, then I’m not going to vote for them.”
“And I don’t care who nominates them,” Hawley added.