Bench Memos

Law & the Courts

Misguided ‘Pro-Life’ Attacks on Trump Supreme Court Candidates

It’s déjà vu all over again. Eleven years ago, in the immediate aftermath of the withdrawal of Harriet Miers’s Supreme Court nomination, I spent a very busy weekend behind the scenes beating back ill-informed attacks on Samuel Alito by some very powerful pro-life activists. Their attack was all the more exasperating because, had it succeeded, they had no good reason to think that President George W. Bush would pick a nominee who would win their approval.

Upon President Bush’s nomination of Alito, I posted my defense of Alito’s vote in a case involving Medicaid funding of abortion. I concluded with this observation:

It is tempting, of course, for those of us strongly opposed to abortion to want justices who will have pro-life values and will indulge those values in their decisionmaking. But that is not what proper judging is about, and seeking such justices would be a foolish strategy. The idea that justices may properly impose their own values and policy preferences is precisely what produced cases like Roe. Moreover, given the strong likelihood that the legal elites will always be to the left of the American people, any efforts to legitimate or excuse that illegitimate idea will help to produce similar usurpations in the future.

I have just received a copy of an email from attorney Andy Schlafly, with the subject line “veto these Sup. Ct. nominee candidates.” Schlafly (a son of the late Phyllis Schafly) signs the email in three capacities: as president of the New Jersey-based Legal Center for Defense of Life, as an attorney for the Eagle Forum Education & Legal Defense Fund, and as general counsel of the Association of American Physicians & Surgeons

Schlafly states that “Justice Scalia’s seat must be filled by someone who is publicly pro-life, as Scalia was.” But was Scalia himself “publicly pro-life, as Schlafly uses that phrase, at the time of his Supreme Court nomination? At his confirmation hearing, Scalia not only declined to answer whether he would vote to overturn Roe v. Wade. He also stated that he did “not recall passing moral judgment [in public] on the issue” of abortion. Scalia detested being labeled a “pro-life” justice, as that label made it seem that he opposed Roe because of his putative policy preferences on abortion rather than because it is a constitutional abomination.

Schlafly asserts that some of the individuals on President-elect Trump’s list of Supreme Court candidates “are not really pro-life” and “would not really vote to overturn Roe v. Wade.” He identifies three candidates who he flatly declares are “NOT pro-life” and three others who he says “Probably would NOT be pro-life.” (His emphases.) He provides brief statements, along with occasional hyperlinks, in support of his assertions.

I will address Schlafly’s claims about each of the six candidates in follow-on posts. 

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