If you missed the drama a few days ago this post will catch you up. Hawley, the new Republican senator from Missouri, went chattering to the media that he has misgivings about Trump’s nominee to replace Brett Kavanaugh on the D.C. Circuit, Neomi Rao — and not just any misgivings but misgivings about her skepticism of substantive due process, the doctrine underpinning Roe v. Wade. Rao has lots of fans in Washington and a supporter in Trump thanks to her work for him on deregulation. She was also singed at her confirmation hearing by Democrats like Cory Booker, making her even more sympathetic to the right.
It was bizarre that a newbie GOP senator would pick a fight with his own party over, of all things, a judicial appointment, especially one as valuable as Kavanaugh’s old seat. Mitch McConnell, who basically exists for the purpose of confirming conservative judges, was reportedly irate:
In a meeting on Monday, Senate Majority Leader Mitch McConnell (R-Ky.) upbraided Hawley, a freshman senator, over the Rao nomination, according to two people familiar with it who spoke on the condition of anonymity to discuss a private matter.
During the meeting, a displeased McConnell told the senator from Missouri that there were two sides in the Rao nomination battle — Republicans and allied groups, and Democrats. McConnell then pressed Hawley: Which side do you want to be on?
One of the people describing the meeting likened it to a “student being called to the principal’s office.”
Meh. If Hawley had evidence that Rao would be soft on abortion on the bench, he had not just a right but a duty to publicize it. Good judges are more important than Mitch McConnell’s “team player” nonsense.
But he didn’t have the goods. He told Axios that he had heard from someone that Rao has admitted she’s personally pro-choice but acknowledged that “I don’t know whether that’s accurate.” Today the Wall Street Journal, which had excoriated Hawley for his skepticism over Rao, tried to explain how he might have come by that information:
Last week we heard from sources that Mr. Hawley was spreading a story that Ms. Rao was pro-choice on abortion. The root of the tale was a conversation Mr. Hawley had with Notre Dame professor Carter Snead, who had told some associates recently that at a dinner more than a decade ago Ms. Rao had said she was pro-choice.
Ms. Rao’s supporters explained to Mr. Hawley that, whatever Mr. Snead’s recollection, she isn’t pro-choice and in any case her personal views are not how a nominee should be judged. We decided not to write about the episode.
Whether Republicans should be in the habit of nominating someone to a high judicial position who’s “personally pro-choice” is an interesting question. The fact that Rao’s headed for an appellate court, where she’s bound to follow Supreme Court precedent, instead of to SCOTUS, where she can make precedent, lessens the urgency of answering it. Hawley’s right to take notice of it, in any case. But airing his concerns before he’d even confirmed what Rao’s view is is so strange that you’re left wondering what ulterior motive he might have had. He couldn’t produce any smoking guns in her academic writing that might have understandably given righties cause for concern either.
He and Rao met privately today before the Senate Judiciary Committee, on which Hawley sits, voted on her nomination. Either Rao convinced him that she’s not pro-choice and/or not a fan of substantive due process or McConnell’s reprimand worked because he finally decided to vote yes. (As did Joni Ernst, by the way, who said at Rao’s hearing that she had concerns about some of her writing about date rape while in college.) The nomination was recommended by a 12-10 vote. Barring something very surprising happening, Rao will be confirmed to Kavanaugh’s seat.
Which leaves us with the question: What was Hawley’s angle in all this? Is there some grudge he bears against Rao? Does he favor a different nominee for the seat? The Journal speculates that it was a cheap way for him to ingratiate himself with social conservatives, which is true — but he won’t face voters again for six years. There’s no reason why he should have felt pressure to pick this fight right now. Unless … he has his eye on a Supreme Court nomination for himself and senses that Rao might be a potential obstacle. Hawley has a SCOTUS resume, after all: Yale Law grad, Supreme Court clerk (for John Roberts), state attorney general, now U.S. senator. It’s unusual for presidents to draw Supreme Court nominees from politics nowadays — the last appointee from the Senate was Sherman Minton, I believe — but Trump has Mike Lee on his short list and Ted Cruz’s name is occasionally kicked around. Hawley’s chief selling point is his age, just 39 years old. He could easily be on the Court for 40 years if appointed sometime soon. And what’s the most important thing a prospective Republican Court nominee can do to earn the support of the right? Take a hard line on abortion, of course. If this episode with Rao achieved nothing else for him, it signaled to conservatives that they can absolutely trust him to overturn Roe. Certainly they can trust him more than Rao, another potential shortlister and thus a rival for a new SCOTUS opening.
Exit question: How excited would Mitch McConnell be to see Hawley elevated to the Court and the GOP forced to win a newly open Senate seat in a tricky reddish-purple state like Missouri?