After being disappointed by a handful of rulings at the end of the Supreme Court term, conservatives are debating anew how to ensure that Republican judicial nominees are as dependably conservative as Democratic picks are liberal.
Even after Republican appointees, most of them selected through a painstaking review process by top legal conservatives, achieved a 5-4 majority on the Supreme Court, the liberal bloc prevailed on key cases concerning abortion, LGBT rights, religious liberty, and immigration as the most recent term came to a close. President Trump has made his success with Senate Majority Leader Mitch McConnell at confirming conservative judges a major part of his case for reelection.
One of these opinions, the Bostock decision interpreting the 1964 Civil Rights Act as banning discrimination on the basis of sexual orientation and gender identity, was authored by Trump-appointed Justice Neil Gorsuch, who succeeded conservative legend Antonin Scalia on the court. In most cases, however, Chief Justice John Roberts, a George W. Bush nominee, was the defector. Conservatives have even begun to debate whether it is better to have nominees committed to a judicial philosophy known as originalism or rather those who wish to deliver specific outcomes, as the Right says Democratic-appointed judges always do.
Sen. Josh Hawley, a Missouri Republican who declared the “conservative legal project” had come to an “end” with Bostock, has laid down a new marker: He wants Supreme Court nominees to go explicitly “on the record” as saying the 1973 Roe v. Wade decision legalizing abortion was wrongly decided.
“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 told the Washington Post.
Not since Byron White was nominated in 1962 has a Democratic appointee to the court opposed Roe — he was one of the original dissenters in 1973 and voted to overturn the decision in 1992 — and joined the conservative bloc more generally. White retired in 1993 and was replaced with Ruth Bader Ginsburg.
Among Republican appointees, it has been closer to 50-50. Ronald Reagan named two justices who were willing to overturn Roe, Scalia and William Rehnquist. Rehnquist was already serving on the court and was promoted to chief justice. He nominated two others, Sandra Day O’Connor and Anthony Kennedy, who upheld the core holding of Roe. Kennedy was picked after the Democratic-controlled Senate rejected Robert Bork, viewed as a reliable conservative. George H.W. Bush nominated David Souter, who essentially voted to reaffirm Roe, and Clarence Thomas, the most explicitly anti-Roe sitting justice. The Bush 43 and Trump nominees have yet to be tested, though conservative suspicions of Roberts have grown in recent years.
Republican presidential candidates have typically stopped short of publicly committing to a Roe litmus test, whereas Democrats have gradually embraced it.
“It’s important to ensure that our justices are faithful to the Constitution above all, and I agree with Sen. Hawley that the Senate should reconsider and modify its vetting process for nominees. A justice’s primary obligation is to decide cases based on the Constitution, and Roe was improperly decided,” said Jenna Ellis, a senior fellow at the conservative Falkirk Center for Faith and Liberty and legal adviser to the Trump campaign. “The Supreme Court has been hijacked by leftist activists who have twisted and manipulated the Constitution beyond recognition. President Trump is committed to nominating faithful originalists who will follow the Constitution.”
Carrie Severino, president of the conservative Judicial Crisis Network, worries that Hawley’s Roe test could in practice be passed by Souter and Kennedy, who were critical of the decision but became linchpins of 1992’s 5-4 Planned Parenthood v. Casey ruling upholding abortion rights, while excluding Thomas and Samuel Alito, who made no commitments during their confirmation hearings. A nominee would have to be willing to prejudge a future abortion case, which raises its own issues, including future calls for recusal and whether a conservative would be confirmable if they needed the vote of pro-abortion rights centrists such as Sen. Susan Collins of Maine.
“In some ways, they’re fighting yesterday’s battle,” said Severino. “It’s a different world than it was 30 years ago.” She differentiated between Gorsuch, whom conservatives are mostly at odds with on a single decision, and Roberts when evaluating how the Right is vetting high court picks. “The system, it’s explicitly designed to avoid another Roberts type,” she said. “In the Trump era, there’s also been a focus on courage.”
Trump vowed in 2016 to make his Supreme Court picks from a publicly available list that included his eventual nominees Gorsuch and Brett Kavanaugh. He has floated the possibility of a new list in the wake of conservative criticism of recent rulings.
