Bench Memos

Law & the Courts

The Challenge of Seating Justices Who Will Overturn Roe

In a sequel to my Public Discourse essay yesterday on Senator Josh Hawley’s flawed test for Supreme Court candidates, I present the serious obstacles that stand in the way of putting on the Court justices who will overturn Roe. Among them:

A presidential term lasts four years, while a Supreme Court justice’s tenure is for life. The mismatch gives the president and his advisers an incentive to care much more about how a nomination affects the president’s immediate political standing—and, if he is in his first term, his prospects for re-election—than about how it reshapes the Court over the long term. That is especially true when the president and his closest advisers are not lawyers. So among the candidates that the White House counsel presents, the president will be inclined to select the candidate who seems most politically adept and least controversial.

I also explain how factors of character and personality among the candidates compound the difficulty, and I offer very specific advice on how pro-life senators could maximize their influence now:

In the current Senate, with a majority of 53 Republicans, Hawley ought to work to locate at least three other pro-life Republican senators with whom to ally. Together they could credibly threaten to deprive an unacceptable nominee of the Republican votes that would be sufficient for confirmation.

Time is of the essence. As Hawley recognizes, senators’ best opportunity for impact is before the White House settles on a nominee. If a vacancy were suddenly to arise now, the White House would likely aim to announce its nominee within a matter of days. What Hawley and his fellow senators should jointly do as soon as possible—before a vacancy arises—is inform the White House of any particular candidates that they regard as unsuitable on Roe and commit to oppose, publicly and immediately, the nomination of any such person.

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