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Abortion, Judiciary

When life itself becomes too politically charged for judicial appointments

President Donald Trump likes to keep his campaign promises, and he wants to make sure you know it. From tax cuts to the wall to the appointment of conservative judges, the president has generally attempted to deliver on the promises that won him the presidency.

A significant reason why the president has kept his campaign promises is likely that he has been held accountable by the disparate factions of his coalition. Whether on immigration, gun rights or life issues, Trump appears cognizant of his responsibility to fulfill his commitments.

Effectively holding the administration accountable means demonstrating that actions taken will be evaluated objectively, putting fidelity to principal first. Being an ally does not mean taking everything at face value and acting as a rubber stamp. Trust, but verify.

This brings us to Sen. Josh Hawley, R-Mo., who was recently criticized for asking important questions as a member of the Senate Judiciary Committee. Hawley posed fundamental questions about the qualifications and judicial philosophy of Neomi Rao, a U.S. Court of Appeals nominee for the District of Columbia Circuit. Normally, questioning of this sort would be uncontroversial. It is the function of the Senate Judiciary Committee to carefully analyze, meet with and to question judicial nominees in service of their responsibility to offer the president “advice and consent.” Constitutionalist senators regularly question nominees on their views on a whole host of issues close to the heart of constitutional interpretation. Senators inquire about judicial philosophy, views on state powers, unenumerated rights and many other issues. In this tradition, Hawley sought to clarify the nominee’s perspective on the Constitution’s posture toward human life — hardly a niche issue.

The core issue of concern to Hawley was Rao’s past writings, which indicated that she believed in the controversial legal doctrine known as “substantive due process,” which was used in Roe v. Wade to conclude that the Constitution provided a fundamental right to abortion. Many prominent judges and scholars join Hawley in rejecting the legitimacy of substantive due process. Hawley authored an extensive article on substantive due process when he was a professor at University of Missouri Law School, underscoring that this has long been an area of concern for the freshman senator.

Unfortunately, Hawley’s concerns have been needlessly maligned, with some painting the senator’s inquiry as an instance of political opportunism designed to underscore his bona fides on life issues.

But Hawley’s inquiry was important and legitimate for several reasons. The president promised to appoint “pro-life” judges. Vice President Mike Pence has vowed that the Trump administration would seek to overturn Roe v. Wade. And support for life-affirming judges has been part of the Republican Party platform for three generations.

Hawley set a standard for other life-affirming senators with his principled concern that federal judicial nominees reflect a legal philosophy that affirms life in principle and in practice. If senators can seek an originalist philosophy in nominees, they can look for a life-affirming philosophy as well, since originalists look to the Constitution’s preamble and its Fifth and Fourteenth Amendments as confirmation of a foundational respect for the right to life. Hawley had a distinguished legal career before his arrival in the U.S. Senate last year. From Yale law school, to clerking for Chief Justice John Roberts, to his steadfast work as the attorney general of Missouri, Hawley has demonstrated time and again his commitment to honoring the Constitution as written and originally understood, including its respect and protection for human life.

It’s true that Hawley has made clear on many occasions his disdain for the Supreme Court’s rulings in Roe v. Wade and Planned Parenthood v. Casey. It’s also true enough that one can believe that abortion is both unjust and corrosive public policy, while also recognizing that such a belief says little about whether there is a right to abortion inherent in the Constitution. And while Clarke Forsythe, senior counsel at Americans United for Life, outlines why the Constitution does not guarantee a right to abortion, our present jurisprudence on abortion is generally considered to be unworkable in most serious law and policy circles. Hawley’s concerns are just one example of the continuing debate over constitutional law and abortion, as those favoring abortion increasingly push for a single-payer Medicare for All solution that would make abortion a public good, federally funded in every state, and as opponents of abortion propose law and policy reforms designed to address the social and economic concerns that make abortion as a response to new life seem necessary in the first place. For many voters, the task of confirming judges that would faithfully uphold the Constitution as written and intended remains paramount, particularly when they cast their ballot in the most recent election. When questioning Rao, Hawley was fulfilling his mandate to properly vet judicial nominees before casting a vote.

The Senate Judiciary Committee voted on Feb. 28 to advance Rao’s nomination. The day before the vote, Hawley met with Rao, who told him that “she would interpret the Constitution according to its text.” Hawley ultimately voted with the majority in favor of Rao.

Nonetheless, the way Hawley was treated for taking the issue of life as seriously as any number of other important issues is troubling. “The questions he is raising are important and are in good faith,” stated Sen. Ted Cruz, R-Texas, who chastised those he believed sought to “pummel a senator on this committee.” What kind of precedent does it set if senators who are charged with confirming judges cannot ask legitimate questions regarding their judicial philosophy? When a former editor of the Yale law review, a Supreme Court litigator, and conservative rising star can’t ask good faith questions in defense of life, who can?

Hawley was asking the right questions.