According to this Axios article, Senator Josh Hawley has “deep concerns” about what D.C. Circuit nominee Neomi Rao’s views on abortion and/or Roe v. Wade might be. In the article, Hawley states that he is “only going to support nominees who have a strong record on life.” He elaborates:
To me, that means … someone whose record indicates that they have respect for what the Supreme Court itself has called the interests of the unborn child; someone whose record indicates they will protect the ability of states and local governments to protect the interests of the unborn child to the maximum extent … and number three somebody who will not extend the doctrines of Roe v. Wade and Casey, which I believe are deeply incompatible with the Constitution.
As I have made clear for years, I share Senator Hawley’s view that Roe v. Wade and Planned Parenthood v. Casey “are deeply incompatible with the Constitution,” and I believe that their overturning is a constitutional imperative. That said, I have to wonder about the standard that Hawley voiced and elaborated.
How many of the thirty federal courts of appeals judges that President Trump appointed over the past two years had an actual “strong record on life,” as Hawley defines the concept? It seems to me far from clear that Chief Justice Roberts (for whom Hawley clerked) had such a record when he was appointed to the Court. Ditto for Justice Thomas, Justice Alito (some pro-lifers expressed concerns about his record), and Justice Gorsuch and Justice Kavanaugh (both of whose nominations Hawley strongly supported). But perhaps the concept of what a “record indicates” is sufficiently malleable that they all would pass.
I don’t claim to know much of anything about Neomi Rao’s views on abortion or on Roe v. Wade. I see that in her student law-review note twenty years ago—against the use of philosophers in judicial decisionmaking—she faulted the Court in Roe for relying on Plato and Aristotle, and she stated that “there were many persuasive legal arguments against recognizing a constitutional right to abortion”:
For instance, substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause, and was at any rate severely discredited after the Lochner era. Furthermore, most states have historically prohibited abortion. The Texas statute struck down in Roe was enacted in 1857, and had remained virtually unchanged until the Court’s decision in Roe.
Is it crystal clear what Rao’s views on Roe were twenty years ago? Do we know what her views are now on abortion and Roe? As with almost all nominees, probably not. All other things being equal, I’d prefer the rare nominee who indisputably has a clear record of sound views on these matters.
But this far down the path in the confirmation process, I don’t think that all other things are equal. Rao has outstanding qualifications for the D.C. Circuit seat to which she has been nominated, and it would be a very costly fiasco if her nomination were to fail.
Insofar as Hawley has concerns about Rao’s possibly being elevated to the Supreme Court some day, I think that it’s fair to say that he has amply highlighted those concerns.