Sen. Josh Hawley, R-Mo., is taking a beating this week. The freshman senator was brash enough to take the “advise and consent” part of his job seriously and raise a few questions about Neomi Rao, President Trump’s nominee to fill Justice Kavanaugh’s old seat on the D.C. Circuit Court of Appeals — specifically seeking more information on her position on abortion. For that, the weight of the Republican judicial establishment has fallen on his head.
Carrie Severino at Judicial Crisis Network accused Hawley of acting like a Democrat, and is reportedly planning a half-million dollar campaign against him in Missouri. Law professor Jonathan Adler called Hawley’s actions “bizarre.” The editorial board of the Wall Street Journal condescendingly dismissed “young Mr. Hawley” as “inhaling rumors” and suggested his concerns were rooted in the bad judgment.
At just 39, Hawley is the youngest member of a body whose average age is 62. But contrary to the Wall Street Journal’s attempts to shame him into minding his betters, Hawley is embodying the proper role of a Senator. Senators should be vetting judicial nominees, rather than blindly rubber stamping them simply because they’ve been nominated by a Republican and praised by the Federalist Society.
The types of issues Hawley raises do not suggest he is inhaling anything, much less rumors.
In a letter to Rao, Hawley outlined three areas of concern in her past academic writings. First, her view that “extra-legal sources can help judges to determine when a departure from past practice might be necessary.” Second, whether a past article implies her belief that Americans have a constitutional right to dignity, over and above democratically passed laws. And third, specific questions about her views on the seminal abortion case, Planned Parenthood of Se. Pennsylvania v Casey.
All of these are sober-minded, textually based inquiries, a far cry from the reactionary, grasping at straws type of questions the legal establishment is making them out to be. More importantly, they are worthy of examination, as these same justifications have been used across the judicial spectrum to justify increasing access to abortion services.
But the merits of her positions aside — and, to be clear, there may indeed be strong merits to Rao’s position that do not assail her credibility on the life issue — this is exactly what senators should be doing.
Why? Because it’s gone wrong for conservatives before.
When President George H. W. Bush nominated David Souter to the Supreme Court, conservatives were assured he would be a champion for the Right. “Souter,” Bush’s chief of staff John Sununu promised, “will be a home run for conservatives.” As Weekly Standard writer Jeffrey Rabkin put it in 1995,
Shortly after his confirmation, Souter was revealed to be just what Howard Phillips feared when he wrote the plurality opinion that upheld Roe v. Wade, joining four other justices, all of whom were nominated by Republicans.
History, if not common sense, tells us that the “trust us, we know him” approach is neither sound nor reliable when it comes to lifetime judicial appointments, particularly to a seat that makes up the short list for the Supreme Court.
Hawley and Rao are scheduled to meet and discuss his concerns on Wednesday. It is entirely possible that Hawley’s concerns will be allayed. Rao’s record as a clerk for Justice Clarence Thomas and her accomplished tenure as the head of Trump’s Office of Information and Regulatory Affairs both speak well of her conservative bona fides.
But, none of these things have anything to do with where she stands, and, more importantly, where she believes the Court should stand, on the issue of abortion. To his credit, that is what Hawley is attempting to suss out.
Rather than attacking him, conservatives, long adherents to the “trust, but verify” stratagem of President Ronald Reagan, should be thanking him for his thoroughness.
Rachel Bovard (@rachelbovard) is policy director of the Conservative Partnership Institute.
