This is a sticky wicket for ambitious young conservative lawyers, as they’re usually careful not to show their cards on Roe lest it be used against them in a future confirmation hearing. You don’t need to show all of your cards, Hawley warned them in a new interview with WaPo, but I want to see at least one of them. Was Roe wrongly decided or not?
What he’s looking to do here is push the envelope on the so-called “Ginsburg Rule.” That refers to when a SCOTUS nominee refuses to answer questions about how they might rule on overturning Roe because to do so would violate their ethical obligation not to comment on matters that might eventually come before them on the bench. That’s fine, says Hawley. I’m not asking if you’d uphold Roe. What I want to know is whether you think Roe was wrongly decided.
I tend to view everything he does through the prism of his impending 2024 presidential campaign, which is unfair to him. Maybe he’s on the level with this. Maybe his old boss, John Roberts, disappointed him so gravely by joining the Court’s liberals in striking down Louisiana’s pro-life law last month that Hawley’s grasping for ways to avert similar betrayals by future justices. Pressing them on the merits or lack thereof of Roe is one way to gain a bit more insight into how they’re likely to rule on abortion issues, if not quite a guarantee.
But it’s hard not to notice that upping the ante this way on social conservatives’ cardinal policy issue won’t hurt him in the battle with Cruz and Cotton for populist votes in the primary four years from now.
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley said in an interview with The Washington Post. “By explicitly acknowledged, I mean on the record and before they were nominated.”
Hawley added: “I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”…
Hawley, 40, a former law professor and clerk for Roberts, said in the interview that he is focusing on abortion ahead of the next Supreme Court nomination because he believes “Roe is central to judicial philosophy. Roe is and was an unbridled act of judicial imperialism. It marks the point the modern Supreme Court said, ‘You know, we don’t have to follow the Constitution. We won’t even pretend to try.’”
One obvious point here is that if Hawley’s serious about this, a hypothetical Trump SCOTUS nominee would be likely to lose at least one Republican vote in the Senate. That’s because purple-state senators like Susan Collins are destined to be squeamish about a judge who comes strolling into the hearing room boasting that they hated Roe before hating Roe was cool. At least three polls taken last year showed strong public opposition (67 percent or better) to overturning Roe. If a nominee said flatly that they thought Roe was wrongly decided, many would read that as a hint that they’d overturn the ruling if it came before the Court. Which means the nominee could either lose Hawley by refusing to comment on Roe or they could lose Collins — and maybe Murkowski, and maybe others — by giving Hawley what he wants and saying Roe was wrongly decided.
Which means GOP nominees would start at a disadvantage relative to Democratic ones, especially if other populist senators like Cruz decided to apply Hawley’s litmus test on Roe as well. Then there’d be entire blocs on either end of the caucus likely to vote no on the nominee because he/she either *will* say Roe was wrongly decided or *won’t*. And that’s a big deal potentially, since the best-case scenario for the GOP this fall right now looks to be a narrow Trump victory and a modest loss of a few seats in the Senate. Imagine Trump’s second term starting with a 50/50 Senate and the Collins/Hawley factions at loggerheads over Roe. How do you get anyone confirmed? If the plan is to let all the Collins-esque RINOs be purged from the Senate and start confirming justices with a 50-vote rock-ribbed conservative majority, it may be a loooong time before that’s feasible.
Ramesh Ponnuru identifies another problem with the Hawley rule. As the senator himself recognizes, thinking Roe was wrongly decided is no assurance that a justice will vote to overturn it:
A justice who had been on record against Roe would not be a lock to vote to overturn it, because of the force of precedent. Chief Justice John Roberts might well believe that Roe was wrongly decided as an original matter, just as he believes that Whole Woman’s Health v. Hellerstedt was wrongly decided. But he voted to strike down abortion restrictions this year anyway, on the stated ground that precedent had to stand.
Amy Coney Barrett, the social-conservative favorite for the next seat on the Court, has hinted that Roe was wrongly decided but never explicitly said so — again, as young conservative legal stars tend to do. She’s also said that it’s “very unlikely” Roe will ever be overturned and that the “fundamental element, that the woman has a right to choose abortion, will probably stand.” If a seat on the Court opens tomorrow and Barrett won’t give Hawley the reassurance he’s seeking, is he … really going to vote no? Imagine that Collins, Murkowski, and Romney all decide to vote no as well simply because they believe the Merrick Garland precedent requires them to hold the seat open until after the election. Hawley would be the fourth vote to kill Barrett’s confirmation.
There’s no way he would cast that no vote. Not if he’s serious about running in 2024, and he is.
Here’s what’s clever about his “litmus test,” though: It’s highly unlikely that he’ll need to act to actually implement it. It’s mainly posturing for the base. Given the state of the polls, odds are that Joe Biden will be president next year and Hawley will be voting no anyway on Democratic SCOTUS nominees until he runs for president himself in four years. It’s possible that a Court vacancy could open up in the next five months, but Trump himself is destined to choose the most conservative candidate available given the base’s anger at Roberts’s recent abortion switcheroo. In fact, his aides are reportedly culling his shortlist to eliminate all but the most reliable righties on it. “The whole purpose of the list is to give hardline conservatives a guarantee that we will not be betrayed again,” said one Republican who’s close to the White House to Politico. Maybe there’ll be something in the nominee’s record that Hawley will deem “close enough” to saying Roe was wrongly decided that he’ll vote for them anyway. Or maybe Trump will have the votes needed to confirm the nominee even without Hawley, in which case Hawley might vote no harmlessly, to signal his seriousness of purpose.
The only scenario in which his litmus test is apt to make trouble for him this year is if the Senate is deadlocked 50/50 and his vote is needed to make a majority. That’s unlikely, if not impossible. As for a second Trump term, he can revisit his litmus test in January when he knows the composition of the next Senate. If Republicans are in the minority then it won’t matter how Hawley votes; Schumer’s going to block Trump’s nominees. If Republicans have a pared-down majority, it may be that the remaining caucus will be more conservative than the current one (e.g., Collins might lose in November) in which case the Hawley rule might gain traction as a litmus test among GOPers. If not, though, and if his vote looks to be decisive on confirmation, he’ll obviously find a loophole that justifies him voting to confirm. It’s simply unimaginable that he would sink a Trump Court nominee for any reason when he’s planning a presidential run and positioning himself to compete for Trump’s base. If Hawley has to choose between loyalty to POTUS and his litmus test, he’ll choose Trump. Under any other circumstance, given the great likelihood that his vote won’t matter, he’ll choose his test and be sure to remind social conservatives of it in 2024, early and often.