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.