Republican U.S. Sen. Josh Hawley of Missouri threatened on Sunday never to vote for a Supreme Court nominee who has not explicitly denounced the pro-abortion 1973 ruling Roe v. Wade. This could be a very counterproductive threat, especially if he follows through.
Let’s set aside, for now, the apt contention that the judicial ethics are very dicey for any jurist to offer an explicit commentary on a case whose legal progeny continues to flood the courts year after year. Suffice it to say that official ethics rules would certainly be implicated, and litigants would have good cause to think their cases were being prejudged.
Even just as a matter of pure practicality, Hawley’s pledge is ill-advised. Yes, Hawley is right that Roe is profoundly lacking in constitutional logic, as even liberal justice Ruth Bader Ginsburg has argued (she advocates another route to making abortion a right). But he is wrong that the way to overturn that decision is to get nominees on the record saying it was wrongly decided. In reality, his approach might make it more difficult to end the Roe regime.
First, unless there is a clear majority of pro-life, anti-Roe senators in office at the time, then Hawley’s pledge to force nominees’ hands on addressing how they would rule would mean that solidly conservative jurists would have to forgo his vote. By making the abortion case explicitly, rather than just implicitly, front and center, Hawley would make it impossible for pro-choice Republicans to vote in favor of the nominee. Senators such as Maine’s Susan Collins or Arlen Specter, for example, never would have voted for Brett Kavanaugh or Samuel Alito, respectively, if either had openly blasted the decision in Roe.
In both cases, those nominees would not have been confirmed without the support of some pro-choice senators. Yet it is clear that both Alito and Kavanaugh, along with Neil Gorsuch and Clarence Thomas (who also might have been defeated had he been explicitly anti-Roe before the confirmation vote), are stalwarts at the very least for eroding the foundations of Roe and its judicial offspring. In a nation always closely divided on abortion, Hawley’s standard would keep off the court such conservatives whose interpretive approach will naturally lead them to look askance at Roe.
Second, justices are expected to recuse themselves from cases if they can have been said to have prejudged the outcome. While Hawley did say he was not asking nominees to say how they would “vote” on future cases, the reality is that any explicit formal statement, outside the bounds of a judicial decision itself, against the substance of a prior decision might force a justice to recuse himself if that decision were to be reexamined.
Hawley’s requirement would mean that a court majority wishing directly to Roe v. Wade, if ever such a majority materializes, might not be ethically free to do so.
Even Carrie Severino, the pro-life president of the influential conservative Judicial Network, felt obliged to tweet out criticism of her ally Hawley’s statement. She noted that Hawley’s standard “would have excluded Justice Thomas and Justice Alito while allowing [eventually pro-Roe] Justice Souter and Justice Kennedy.”
Hawley’s heart and constitutional principles might be in the right place, but his practicality needs some work. He should do what the character Fagin sang about in the movie Oliver! Hawley should be “reviewing the situation” and should “think [he] better think it out again.”
