Having watched it many times in confirmation hearings, we’re all familiar with the tapdance a Supreme Court nominee must perform when asked about abortion, particularly if they’re Republican.
Step one: “Senator, as you know, it’d be unethical for me to pre-judge a matter that might appear before the Court.”
Step two: “But needless to say, robust respect for stare decisis is crucial to maintaining the Court’s legitimacy.”
Step three: “Having said that, there are times the Court must act to undo its own mistakes. Surely no one in this room faults the Warren Court for discarding Plessy v. Ferguson.”
It’s not just abortion. Kagan gave a variation of the same answer, as I recall, when asked in 2010 about legalizing gay marriage. The critical point is that this dodge works if and only if the nominee doesn’t have a paper trail telegraphing what they might do if given the power to overturn Roe. Most SCOTUS nominees are federal judges who have usually addressed abortion only glancingly in their rulings and even then were closely bound to following Supreme Court precedent. And nowadays any aspiring judge has the good sense not to reveal their view of Roe in law-review articles or other extrajudicial writings for fear that it might be used against them in confirmation.
The exception is politicians, whose job requires them to take positions on hot-button matters. It used to be more common for politicians to be elevated to the Court (Earl Warren was governor of California when he got the call). It’s less common now, precisely because politicians leave paper trails. In an age of hyper-mega-ultra-polarization around the Court, you can’t leave fingerprints on abortion and realistically expect to clear the Senate — not when it’s 51/49, at least. And Mike Lee, being a politician, has left fingerprints. Go read his speech from January 19 of this year celebrating the March for Life. It’s a testament to his commitment to the pro-life cause that he’d take to the Senate floor to say this knowing he was already on Trump’s list of potential Supreme Court nominees and what this might do to his chances:
These Americans march to protest the legal regime that sustains abortion.
The cornerstone of that crumbling edifice is Roe v. Wade, the 1973 Supreme Court case that invented a so-called “right” to abortion in the Constitution, and in so doing stripped the unborn of their right to life.
The principal effect of Roe on our culture has been to cheapen the value of humanity itself.
Roe has insinuated into the law a poisonous notion, the notion that some human beings may be treated as things. As objects to be discarded when they are inconvenient. We’ve seen this before in human history.
That’s just a taste. He goes on and on, ultimately ending by comparing Roe to “a similar indignity,” Dred Scott, the most notorious decision in American history. The guy simply could not be any clearer that he’d nuke Roe from orbit in a heartbeat if given the chance. There’s no way to tapdance out of that with some heavy breathing about precedent, despite Lee’s half-hearted effort yesterday on TV. There’s not even an option for him to say that he was speaking broadly about policy in his capacity as a senator, not necessarily how he’d speak as a justice of the Court. He’s talking specifically about Roe in his speech. His intent couldn’t be plainer.
And that’s why he’s a non-starter for Collins, Murkowski, and the Democrats. Because of speeches like this one, his confirmation would end up a pure referendum on Roe, even more so than for any other potential nominee. Maaaaaybe Collins and Murkowski would be willing to give the benefit of the doubt to a nominee who performed the now-familiar tapdance elegantly; all they need in order to vote for a Republican justice is some plausible deniability about what that Republican might do to Roe on the bench. But Lee doesn’t give them even that. And because he’s made his intentions on abortion so clear, he doesn’t give it to Joe Manchin, Heidi Heitkamp, et al either. This is one of the toughest votes red-state Dems will ever take; in a case where it’s this clear that they’d be voting for a Republican who intends to overturn Roe, the vote becomes impossible. Their base would collapse in November if they went to the mat for Lee given his public rhetoric about abortion.
So how does Lee get confirmed? He doesn’t — and maybe that’s not a bad thing for Republicans, argues Bloomberg reporter Steven Dennis:
I suppose there is a possible argument to be made for naming Lee even if his nomination were to fail, say, 50-49. An open seat on election day w/Roe at stake would be maximum motivation for voters in Senate races, and the map favors GOP…
— Steven Dennis (@StevenTDennis) June 28, 2018
Yeah, the politics of a defeated nomination before the midterms are tricky. Which side would that help? Do Dems surge to the polls in excitement, elated by their victory, or do furious Trumpers awaken and storm down to the ballot box in red states to liquidate Manchin and the rest for blocking Lee? Gotta be both, I would think, since the midterms would now be about defining who controls the Senate when the next nominee comes before it in 2019. But that may end up as a bad outcome for Democrats simply because the Senate map favors the GOP so strongly this fall. There are more opportunities for Republican voters to punish Democratic Senate incumbents than there are for Democratic voters to punish Republican ones, which means we could end up with a more Republican Senate next year. And then it’s anyone’s guess what Trump would do. Would he demand a re-vote on Lee? Back down and look for a replacement whose views on Roe are more obscure?
Here’s Lee laying all of his cards on the table less than six months ago.