(July 27) Republican U.S. Sen. Josh Hawley of Missouri threatened on Sunday never to vote for a Supreme Court nominee who has not explicitly denounced the pro-abortion 1973 ruling Roe v. Wade. This could be a very counterproductive threat, especially if he follows through.

Let’s set aside, for now, the apt contention that the judicial ethics are very dicey for any jurist to offer an explicit commentary on a case whose legal progeny continues to flood the courts year after year. Suffice it to say that official ethics rules would certainly be implicated, and litigants would have good cause to think their cases were being prejudged.

Even just as a matter of pure practicality, Hawley’s pledge is ill-advised. Yes, Hawley is right that Roe is profoundly lacking in constitutional logic, as even liberal justice Ruth Bader Ginsburg has argued (she advocates another route to making abortion a right). But he is wrong that the way to overturn that decision is to get nominees on the record saying it was wrongly decided. In reality, his approach might make it more difficult to end the Roe regime.

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….

[The rest of the column is here.]



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