Politics & Policy

The Supreme Court Nomination Is — and Isn’t — All about Roe v. Wade

(Larry Downing/Reuters)
Even more fundamental are the constitutional vision and character of the prospective justice.

Judge Bill Pryor was initially the front runner in 2017 for President Trump’s first Supreme Court nomination. Owing to the Republicans’ slim majority in the Senate and Pryor’s statements about abortion, however, he was considered unconfirmable.

In 2003, at the hearing on Pryor’s nomination to be a federal appellate judge, Senator Chuck Schumer challenged previous statements of his in which he called abortion murder. Pryor did not back away from his beliefs. Instead, he stunned everyone by saying, “I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”

Pryor’s courage made him a hero for many, including Justice Antonin Scalia. In the face of almost certain defeat of his nomination by Senate Democrats, Pryor did not bow to the political power of the abortion lobby. He spoke truth to power.

Through a recess appointment and then a Senate compromise, however, Pryor did get his judgeship. It was his fortitude and courage under fire that propelled him. As John Malcolm of the Heritage Foundation later said, Judge Pryor has “a titanium steel spine.”

Among the list of 25 from which the president will choose his next Supreme Court nominee, there are others who possess similar fortitude and courage. The difficulty is in determining who they are. How does one predict that, once a justice, someone will refuse to bow in worship to the prevailing winds of elite opinion?

Presumably, everyone on the list of 25 says, and has demonstrated a belief, that the Constitution should be interpreted as written. But so did Anthony Kennedy during the Reagan administration when he was being vetted for the Supreme Court.

In 1992, however, Justice Kennedy flipped, in the Casey case, in which he reaffirmed Roe. Court watchers at the time attributed it to Harvard law professor Laurence Tribe and his “persuasion, flattery, and law clerks.”

In 1988, after the Senate defeat of Judge Robert Bork and Judge Douglas Ginsburg’s subsequent withdrawal from consideration, President Reagan nominated Judge Kennedy. To the surprise of many, liberal icon Professor Tribe testified at the hearings and spoke about Kennedy in flattering terms. “What I find most appealing and promising about the picture that emerges is precisely the absence of any simplistic, single, fixed point of view,” Tribe said. “I think [he has] great intelligence and fair-mindedness and commitment to principle; but not unitary vision.”

“Unitary vision”: That is fundamental. A clear vision of the Constitution is what separated Justice Kennedy from Justices Scalia and Clarence Thomas, even when they voted together.

Just as important was that Tribe spotted Kennedy’s character weakness: vanity. Tribe knew that without a clear vision of the Constitution, a vain Kennedy could be flattered into adopting, as law professors often say, “the better view.”

Contrary to claims from the Left, the Reagan administration did not ask potential judicial nominees their positions on abortion. But they did ask virtually every nominee his or her position on Roe v. Wade. Roe is the touchstone for whether one adheres to the written text of the Constitution or not. Critics of Roe need not, and even a few law professors do not, care one way or another about abortion.

A commitment that Roe was wrongly decided is a necessary, but not sufficient, predictor of how a nominee will act as a justice.

Senate Democrats and the abortion-rights lobby, however, cannot distinguish between support for abortion and support for Roe. If they did so, they could be admitting that what they consider to be desirable policy is not supported by the Constitution.

President Trump was right to say he would not ask potential nominees their positions on abortion. But it is a virtual certainty that every one of the finalists sincerely holds that Roe v. Wade was wrongly decided.

Justice Kennedy has demonstrated, however, that a candidate’s genuine, pre-confirmation commitment does not always hold. A commitment that Roe was wrongly decided is a necessary, but not sufficient, predictor of how a nominee will act as a justice.

Professor Tribe has proven that ultimately what matters are a nominee’s “vision” of the Constitution and his or her strength of character to withstand the persuasive forces of elite opinion. A potential nominee can be questioned about his or her vision of the Constitution. But how does one determine strength of character? Although it is difficult to discern, those vetting possible nominees are, we should hope, looking at whether the person can withstand being vilified in the media and academia.

Vilification always comes if, after confirmation, a justice adheres to the Constitution as written. Justices Scalia, Thomas, Samuel Alito, and now Neil Gorsuch have been vilified for refusing to bow to the “better view” as enunciated in elite opinion. If President Trump hopes to avoid some mistakes by past Republican presidents, he will want to choose a person who is committed to the Framers’ vision of the Constitution and who has a character that can resist both flattery and vilification.

John S. Baker Jr. — John S. Baker is a professor emeritus at  Louisiana State University Law Center. For many years he taught, with Justice Antonin Scalia, a course on separation of powers.

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