Gorsuch: If Trump had asked me to overturn Roe v. Wade, I would have walked out

Some social conservatives are grumbling about this on Twitter but I’m not sure what answer they were looking for. How could he say he’d have promised the president he’d rule a certain way in a particular case that might end up before him? He would have shredded his credibility on judicial independence. Guaranteeing an outcome when you’re being interviewed for a Supreme Court vacancy would be tantamount to accepting a bribe. In return for Trump giving Gorsuch his dream job, Gorsuch would be promising Trump in return a very, very valuable political outcome. Quid pro quo. The reason SCOTUS nominees are vetted to within an inch of their lives is partly to spare them from that sort of dilemma while gaining assurances that they would, in fact, vote the way you’re hoping they’d vote. Looking carefully over his career, noting his Scalia-esque reputation for consistent conservatism and his writings on the sanctity of life vis-a-vis euthanasia, are we confident that Gorsuch would vote to overturn Roe? Pretty confident, I’d say. Although it’s interesting to speculate how William Pryor, another Trump shortlister, would have handled this question after having once called Roe “the worst abomination in the history of constitutional law.” Even Pryor, I bet, would have nodded at judicial independence by refusing to say that he would have guaranteed the president an outcome in a given case. But there’d be no mystery as to how he’d vote. With Gorsuch, there’s a little mystery.

But then, that’s another reason Gorsuch answered as he did. He, rather than Pryor, ended up as the pick because the White House fretted that Pryor couldn’t overcome a filibuster thanks to his pronouncements on Roe. Nominating him would have required McConnell to nuke the filibuster, and even then it’s an open question if he could have gotten to 51 votes among Republicans given the vehemence of his Roe criticism. If Gorsuch had answered the way some social cons wanted him to here — “why, yes, I would have happily promised the president I’d overrule this terrible precedent” — it may well have sunk his nomination. He would have lost any red-state Democrats who might be leaning towards voting for him (and I think there are some) in the ensuing uproar. He would have also spooked Republican moderates like Collins and Murkowski, and might have given pause to other Republicans leery of his willingness to make hypothetical promises on future cases to an officer from another branch. Needless to say, the entire remainder of the hearings would have been spent drilling down on which other precedents Gorsuch might hypothetically promise to overturn. He’d be at real risk of getting Borked. Abortion is the nuclear issue at any SCOTUS confirmation hearing, and as tends to be the case with nuclear issues, the most successful option is strategic ambiguity. That’s Gorsuch here. He acknowledged, as he must, that Roe is currently binding precedent; he refuses, as he must, to say that he’d promise Trump how he’d rule if its constitutionality came before him. Annnnnd that’s about as much as he can do. Preserve the ambiguity and pick up the 60 votes you need to get through. Then you can vote how you like.

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