Sen. Josh Hawley of Missouri, a conservative Republican ideologue, foolishly continues to push a litmus test for Supreme Court justices that would have ruled out Clarence Thomas and Samuel Alito but not, on its own, requiring a vote against Ruth Bader Ginsburg.
Indeed, Hawley’s stated standard would compel him to oppose almost every possible nominee on President Trump’s public list. The litmus test is entirely counterproductive. Hawley should abandon it.
Four times since Ginsburg’s death last Friday, Hawley’s press office has tweeted or retweeted a reaffirmation of the test he first laid out in July. The terms of his pledge were quite explicit.
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley told the Washington Post in an interview. “By explicitly acknowledged, I mean on the record and before they were nominated.”
For more than 30 years, every aspiring conservative legal star has learned, including from fellow conservative legal luminaries, that it is a probable judicial career-killer to opine openly on the pro-abortion Roe case. Politically, a public position against Roe makes it quite difficult to be confirmed. Ethically, such an explicit position could provoke calls for recusal from new abortion cases that might arrive if the nominee does get confirmed, because so many active cases rely on Roe and the judge would be seen as having a prejudicial view of those new cases.
Yet now, Hawley demands from potential nominees that they must already have done that which for 30 years it has been forbidden politically to do — and in a way that might make them subject to recusal from the very abortion cases he wants decided for pro-life results.
His demand has all the logic of a court jester on acid.
As noted earlier, Hawley’s demand would have been one that Alito and Thomas never met before they were confirmed. Instead, indeed, Thomas famously told the Senate Judiciary Committee that he had never told anyone his assessment of Roe.
But Ginsburg did. Her assessment was that substantial parts of it were wrongly decided. In fact, although she made clear that she supported a constitutional regime that would protect “abortion rights,” her past statements on Roe itself were so worrisome to the Left that Kate Michelman, then the president of the National Abortion Rights Action League, publicly expressed serious reservations about Ginsburg’s nomination to the Supreme Court.
What sort of pro-life standard is Hawley’s if it would disqualify Alito and Thomas, both of whose eventual court rulings pleased pro-lifers, but not automatically disqualify Ginsburg?
Politically, Hawley is playing with fire. What if his vote is the difference between confirming Trump’s nominee or defeating the nominee? And then what if Trump loses his reelection bid and the Republicans lose the Senate? What Hawley’s obstinance would have then accomplished would be to allow a new, extremely liberal president to appoint another extreme liberal to replace Ginsburg — one certain to uphold Roe v. Wade. Worse, the nominee Hawley would have blocked would have been a solid conservative likely (based on an “originalist” interpretive approach) to overturn or erode Roe, even without an explicit pre-commitment to that effect.
In other words, Hawley’s acid test could actually cause his own stated aims to be aborted.
