Law & the Courts

Roe’s Place in the Confirmation Wars

Supreme Court nominee Judge Brett Kavanaugh takes his seat after a break in his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)
It’s reasonable to hope Kavanaugh will vote to overturn Roe. It’s also proper for him not to commit to doing so.

MSNBC host Chris Hayes tweets, “Every person I know who believes abortion is a horrible evil, that Roe was wrongly decided, and that current law is a moral stain on the country is extremely invested in Kavanaugh’s confirmation, whose judicial views on these questions are, of course, entirely unknowable.”

It’s a clever line, but I think it gets more wrong than right.

Speaking for myself — but I trust not only for myself — I very much want the Supreme Court to stop pretending that the Constitution protects abortion. I think that there is a good chance that Judge Kavanaugh, if confirmed, will vote that way, and it’s one of the reasons I want him confirmed. While I think Hayes overstates how often this happens, Republicans sometimes speak as though we have no idea at all what Kavanaugh thinks about Roe, and that’s preposterous. The judge is an intelligent man with a conservative view of the judicial function, which nearly precludes thinking that Roe was correctly decided as an original matter; and someone who sees Roe was a serious mistake is a lot more likely to vote to overrule it than someone who doesn’t.

But I can’t guarantee that Kavanaugh would vote to restore legislative authority over abortion policy. People who claim that they know he would vote that way are going beyond the evidence and should be corrected.

Why won’t Kavanaugh just tell us how he would vote in such a case? First, because a lot of people, quite rightly, think it would be improper for a judicial nominee to make that kind of commitment in advance of hearing a case. (A lot of people, with less justification in my view, sincerely think it would be improper for a nominee to share his thoughts even about previous cases. Justice Ginsburg, for example, seems to fall into this category.)

Second, because making that kind of commitment about any charged political matter would strike many people as improper, and as evidence of an improper political deal, and thereby make confirmation less likely.

Third, because Roe in particular has the support of many senators and, in polls, most voters. Promising to overturn it would make confirmation unlikely. The poll results, however, deserve a few asterisks. An important qualifier is that the Court’s rulings on abortion are incompatible with, and have been used to strike down, policies that also have public support. (I go into this a bit more here.)

Another important qualifier is that wanting Roe to remain part of our constitutional law is not the same as insisting that nobody who disagrees should be on the Supreme Court. I have never seen anyone poll whether voters believe a justice should be confirmed “even if he refuses to commit to upholding Roe v. Wade,” or “even if there is reason to think he would vote to overturn it.” My guess — which is only a guess, albeit one informed by the evidence of public ambivalence about abortion — is that a significant number of people who want Roe to stay don’t think nominees should be vetoed over the possibility he won’t agree. On the evidence of the confirmation of Justice Neil Gorsuch, a majority of the Senate is willing to vote to confirm someone who has given us some reason to think that he is anti-Roe.

No doubt this is extremely frustrating for Roe’s most devoted supporters. They can’t make a nominee commit to overturning the decision and then block him on that basis. They can’t make a nominee commit to upholding it and thus neutralize him on the issue. And they don’t have enough support to defeat a nominee for refusing to commit while showing signs of skepticism toward their cause. Their problem is just that Roe is less legally and politically secure than they wish it to be.

 

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

White House

The Damning Inspector General’s Report

It is hard to believe that the run-up to the presidential-election year has plumbed such a depth of farcical degradation. It must be that Trump’s influence has contributed to unserious responses, but he can’t be blamed for the unutterable nonsense of his opponents and the straight men of the political class ... Read More
White House

The Damning Inspector General’s Report

It is hard to believe that the run-up to the presidential-election year has plumbed such a depth of farcical degradation. It must be that Trump’s influence has contributed to unserious responses, but he can’t be blamed for the unutterable nonsense of his opponents and the straight men of the political class ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
World

The U.K. Elections Were the Real Second Referendum

In the end, it wasn’t close at all. Jeremy Corbyn’s Labour party met a fate to which it has been accustomed for most of the last half-century. Once again, the British roundly rejected socialism. Boris Johnson and his conservatives will form the next British government. This was no slight rejection. Labour ... Read More
World

The U.K. Elections Were the Real Second Referendum

In the end, it wasn’t close at all. Jeremy Corbyn’s Labour party met a fate to which it has been accustomed for most of the last half-century. Once again, the British roundly rejected socialism. Boris Johnson and his conservatives will form the next British government. This was no slight rejection. Labour ... Read More
World

Well . . . .

So much for my prophecies of doom. Britain's Conservatives won, and they won with a very healthy parliamentary majority, breaking through Labour’s “red wall” across the industrial (and post-industrial) Midlands and the North. The BBC: Leave-voting former mining towns like Workington, which was seen as ... Read More
World

Well . . . .

So much for my prophecies of doom. Britain's Conservatives won, and they won with a very healthy parliamentary majority, breaking through Labour’s “red wall” across the industrial (and post-industrial) Midlands and the North. The BBC: Leave-voting former mining towns like Workington, which was seen as ... Read More
White House

The Costs of Trivializing Impeachment

Resorting to a vague “abuse of power” theory, the House Judiciary Committee Friday morning referred two articles of impeachment to the full House on the inevitable party-line vote. The full House will impeach the president next week, perhaps Wednesday, also on the inevitable party-line vote. The scarlet ... Read More
White House

The Costs of Trivializing Impeachment

Resorting to a vague “abuse of power” theory, the House Judiciary Committee Friday morning referred two articles of impeachment to the full House on the inevitable party-line vote. The full House will impeach the president next week, perhaps Wednesday, also on the inevitable party-line vote. The scarlet ... Read More