Law & the Courts

Sen. Hawley Sets New Pro-Life Standard for Supreme Court Nominees

Sen. Josh Hawley, (R-MO), speaks during a Senate Judiciary Committee Hearing as the outbreak of the coronavirus continues, on Capitol Hill in Washington, D.C., June 9, 2020. (Andrew Harnik/Reuters)

Senator Josh Hawley (R., Mo.) said Sunday he would not support any Supreme Court nominee unless they had publicly acknowledged that Roe v. Wade was “wrongly decided” prior to their nomination.

“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley told the Washington Post, referring to the 1973 ruling that established federal protection for abortion. “By explicitly acknowledged, I mean on the record and before they were nominated.”

“I don’t want private assurances from candidates,” the former law professor added. “I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Hawley’s stance comes as pro-lifers have underscored the importance of vetting Supreme Court nominees after chief justice John Roberts dealt a series of disappointments to pro-life activists and conservatives in siding with the Court’s liberal justices on abortion, immigration and LGBTQ rights.  

Last month Roberts joined the Court’s liberals in striking down a Louisiana abortion law requiring abortionists to have hospital admitting privileges to perform abortions. Roberts drew sharp criticism from many conservatives for saying his decision was meant to follow the precedent set in the 2016 Texas case Whole Women’s Health v. Hellerstedt, though he believed that case had been wrongly decided. 

In his 2005 confirmation hearing, Roberts said Roe was “settled as a precedent of the court,” a position since cited by Republicans during nomination fights. But Hawley’s position could pressure Republicans to move away from that.

“Roe is central to judicial philosophy. Roe is and was an unbridled act of judicial imperialism. It marks the point the modern Supreme Court said, ‘You know, we don’t have to follow the Constitution. We won’t even pretend to try,’” said Hawley, 40, who once served as a clerk for Roberts.

The movement is preparing for the possibility that President Trump could name a new justice this year — marking his third nomination — should there be a vacancy. White House officials and some top Republicans have privately discussed the possibility that Clarence Thomas could retire, the Post reported.

“This standard, for me, applies to Supreme Court nominees, whether they’re a sitting judge or whatever,” Hawley said. “If there is no indication in their record that at any time they have acknowledged that Roe was wrong at the time it was decided, then I’m not going to vote for them — and I don’t care who nominates them.”

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