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The Constitution of the United States requires that the President fill the Supreme Court bench.
But if that’s so, then why did Robert Bork, President Reagan’s pick in 1987, fail to make it there? Why was Merrick Garland, President Obama’s pick from last year, not able to fill Justice Scalia’s empty seat?
Because while the President’s prerogative to nominate Justices is unilateral, getting a nominee confirmed or appointed requires approval by the U.S. Senate.
In 1987, the Senate rejected Bork by a vote of 42–58; Garland wasn’t even given a hearing last year, let alone a vote.
Since Justices serve for life, and since the Supreme Court wields exceptional power, an opening on the Supreme Court bench is a massively consequential event.
This brings us to our present moment.
On February 1, President Trump nominated Neil Gorsuch, a federal judge serving in the U.S. Court of Appeals, to fill the seat vacated by Justice Scalia. Last week, the Senate Judiciary Committee held hearings during which they interviewed Judge Gorsuch.
This committee, which is only a subset of the Senate, will vote on April 3rd whether to approve him or not. Though the committee has prominent Democrats — Dick Durbin (IL), Patrick Leahy (VT), Dianne Feinstein (CA), among others — Republicans have the votes to get him through. Here’s how it breaks down.
If Gorsuch passes this first test — a result that is virtually assured — a full Senate vote would then await him. At that point, if the Democrats filibuster Gorsuch, as Majority Leader Chuck Schumer has suggested they would, Gorsuch would need to clear 60 votes to be confirmed.
But this isn’t decisive, and the reason has to do with Senate procedure. Republicans have indicated that if Democrats filibuster Gorsuch, they will activate the “nuclear option,” essentially the rewriting of a Senate rule that would enable Gorsuch to be confirmed with 51 votes as opposed to 60. If this smacks of Republican cheekiness, note that the nuclear option is one that then-Majority Leader Harry Reid put in play in 2013, when doing so was favorable to Democratic outcomes.
At this point, it’s highly likely that Gorsuch will be confirmed as the newest Justice of the Supreme Court. But let’s back up a bit and explore Gorsuch’s answers to questions about Roe v. Wade, undoubtedly one of the most significant Supreme Court rulings in American history.
Roe v. Wade
Roe v. Wade is the landmark 1973 Supreme Court case effectively legalizing abortion in all fifty states.
While living in Texas, 21 year old Jane Roe (not her real name) sought an abortion. Since Texas law prohibited the practice, Roe sought legal counsel to explore fighting the matter in court. After a couple of years — during which time Roe gave birth to the baby in question — the case made its way to the Supreme Court. Arguments in the Roe case were heard in 1971 and then again in 1972, with the Justices making their ruling in early 1973 — a 7–2 decision in favor of Roe.
Writing the majority opinion, Justice Harry Blackmun argued that there is a constitutional right to abortion based in privacy and liberty. Though this right is fundamental, Blackmun argued, it is not unlimited. Thus, while a woman may not be prohibited from securing an abortion during the first trimester — meaning, while a woman’s right to an abortion during the first three months of her pregnancy is absolute — things get trickier in the second and third trimesters (Blackmun himself came up with the trimester schema). The majority ruling held that during the second trimester, states may “regulate” abortion, and during the third — the point at which the fetus is “viable,” in the Court’s judgment — states may even ban the practice all together.
Why would a right construed as “fundamental” be limited in the ways suggested by the trimester framework?
Because the majority opinion acknowledged competing interests in play. The state has interests of its own, such as protecting “maternal health” and the “potentiality of human life.” Because of the former, states are allowed to “regulate” abortion from second trimester on; because of the latter, states are allowed to regulate and even prohibit abortion beginning in the third trimester given the viability of the fetus.
But why allow states to go beyond “regulating” it to the point where they can actually block the practice all together? The Court took the state to have a compelling interest in protecting a life at a certain point in its development, that is, the point at which it can survive outside the womb.
The qualifications the Court imposed are significant in their own right, but by far the most consequential result of Roe is that it holds a woman has a constitutional right to an abortion. Any state law prohibiting abortion is thus unconstitutional. Sure, the state is able to override this fundamental right, but only in the narrowly confined ways outlined above.
For example, in Texas, the state Roe originated in, a woman seeking an abortion is required to undergo an ultrasound and view the image (and have it described) before she can be cleared for the procedure. Here are some other regulations in play: minors need to have clearance from their parents before an abortion is allowed; state funding only goes to abortions to save the life of the mother, or in cases of rape or incest; to obtain abortion-inducing medication (sometimes called “abortifacients”), a woman must see a licensed physician on four separate occasions.
Gorsuch on Roe
If the importance of Roe doesn’t provide reason enough to care about what a potential Justice of the Supreme Court has to say about it, in Gorsuch’s case we have an even greater reason to pay close attention to his responses on this landmark ruling.
This is because despite being a Trump pick, and despite making conservatives happy, Gorsuch is an unknown quantity on abortion. As a federal judge in the U.S. Court of Appeals for the Tenth District, Gorsuch never participated in an abortion case. Nor does he have a paper trail on this topic. (Even if he did, his past judgments wouldn’t necessarily be determinative. Gorsuch, you’ll recall, had this to say upon being unveiled to the American people as Trump’s pick: “A judge who likes every opinion he decides is likely a bad judge.”)
Needless to say, Democratic grilling of him on this topic could be highly illuminating.
The Senate began asking questions of Gorsuch on Tuesday and continued asking him about Roe on Wednesday. Here is a sampling of what he had to say:
“I would be tipping my hand at suggesting to litigants I’ve already made up my mind about their cases.”
“[Roe v. Wade is] a precedent of the United States Supreme Court.”
“Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It’s been reaffirmed.”
“Part of the value of precedent — and it has lots of value, it has value in and of itself, because it is our history and our history has value intrinsically. But it also has an instrumental value in this sense: it adds to the determinacy of law. Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”
“The Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment.”
“That’s the law of the land.”
“I accept the law of the land.”
At one point, Lindsey Graham (R-SC) asked Judge Gorsuch if President Trump ever asked him to overrule Roe v. Wade.
Gorsuch replied: “No. I would have walked out the door. That’s not what judges do.”
Some conservatives see in these comments grounds for great concern.
Remember Robert Bork, from earlier? Since his nomination was blocked by the Senate, President Reagan moved on and nominated Anthony Kennedy to the bench, where the latter was unanimously confirmed. Justice Kennedy has gone on to make many rulings congenial to conservatives, but he’s also made many decisions that have diverged sharply from conservative priorities, most recently and notably his ruling and opinion in Obergefell v. Hodges (2015), which by a vote of 5–4 gave same-sex couples the right to marry. Kennedy cast the decisive vote and even wrote the majority opinion.
Conservatives worry that rather than Scalia 2.0, Gorsuch is Kennedy 2.0. After all, it’s not guaranteed that a Justice will rule in ideological accordance with the President who nominated him or her. The concern on the part of conservatives is that Gorsuch turns out to be another Kennedy, whom he clerked for in the early 1990s.
Should Gorsuch’s comments on Roe give conservatives grounds for concern? Here are four reasons why I think they shouldn’t.
1. Gorsuch’s Statements on Roe Are Compatible with Conservatism
In his comments on Roe, Gorsuch did not say anything that is false or contrary to a conservative judicial philosophy.
It is factually true that Roe v. Wade is the law of the land. It is factually true that Roe functions as a precedent, and that it has been reaffirmed. It is consistent with conservative jurisprudence that precedents add to the determinacy of the law. None of this is worrisome or even controversial from a conservative perspective.
However, one particularly troublesome response from Gorsuch, according to some conservatives, is when he described Roe as concluding that a fetus is not a person according to the 14th Amendment, and that he accepts that decision.
But “person” is not used philosophically in Roe. It is a technical term referring to a legal category. In other words, legally speaking, a fetus is not a person but a corporation is. But that has no bearing on whether a fetus or a corporation has philosophical or moral or natural personhood.
Had Gorsuch claimed fetuses are not persons in a philosophical sense, that would’ve been more problematic from a conservative perspective. But even that wouldn’t have settled matters, since some important conservative thinkers have made the case that it’s not personhood but biological life that is the category conservatives must protect.
If this is true, Gorsuch would have needed to deny the fetus is biologically human, or biologically alive, for it to run afoul of a conservative vision.
In any event, not even the late Justice Scalia — held by some as the judicial exemplar of conservative thinking — thought the Constitution held that a fetus has a right to life. Scalia was always one of Roe’s most vocal critics, yet he didn’t disagree with the idea that there is no constitutional protection for fetal life. Gorsuch’s comments on the 14th Amendment echo this position.
This is an important point that needs elaboration. Justice Scalia, and very likely Judge Gorsuch after him, believe there is no constitutionally-protected right to life for fetuses.
How can this be? Why shouldn’t we take this as a straightforward repudiation of conservative beliefs?
To begin with, it needs to be noted that mapping conservatism and liberalism onto judges is not the most adequate way to characterize their positions. I’ve been doing so here for ease of explanation, but these are categories better suited to the legislative and executive branches. This is not just a statement about judges — conservatism and liberalism are somewhat unhelpful as interpretive grids not just for evaluating judges, but for evaluating military personnel as well. We should use the categories native to their fields, rather than import classifications from outside realms.
But let’s get back to the question. Why shouldn’t Scalia’s or Gorsuch’s views, described above, represent a repudiation of conservatism?
Because, in addition to acknowledging that the 14th Amendment refers to persons in a legal sense and not a philosophical one, that’s not the component of Roe v. Wade that Justices Scalia or Gorsuch would presumably want to take issue with.
The main issue with Roe, from a conservative perspective, is not that it excludes fetuses from the classification “person,” but that it affirms that there is a constitutional right to abortion. For example, Justice Scalia believed the Constitution does not maintain that fetuses have a right to life, and yet at the same time he thought the Roe decision was severely mistaken in that it acknowledged a constitutional right to abortion.
In a 2012 interview on CNN’s “Piers Morgan Tonight,” Scalia said:
My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that…the Constitution does not say anything about it. It leaves it up to democratic choice.
I bring up Scalia because he was a paradigmatic originalist, the interpretive philosophy Judge Gorsuch subscribes to.
The point is that a judge need not believe the Constitution contains protections for the unborn in order to see a constitutional right to abortion as a huge legal mistake.
These two claims are separate and a judge can take issue with one but not necessarily the other:
1. The Constitution does not protect unborn life
2. The Constitution acknowledges a woman’s right to an abortion.
Roe held both, but Scalia only rejects claim number two, which is enough to overturn the most salient part of the case. In my judgment, Gorsuch very likely takes this same approach as Scalia.
If Gorsuch is indeed like Scalia on this point, then he could strike down Roe’s prohibition on states to outlaw abortions. In other words, without even arguing that a fetus is a person, or that a fetus is biologically alive, or that the fetus has a right to life, Gorsuch could strike down Roe and thereby kick the abortion question back to the states.
2. There Are Very Good Political Reasons for Gorsuch to Parse Answers Carefully
It’s obvious that Republicans, President Trump included, would like to see Gorsuch confirmed without having to activate the nuclear option.
If Senate Majority Leader Mitch McConell (R-KY) has to change the rules to neutralize a filibuster, then that will have ramifications down the road. Republicans would rather Democrats not filibuster a vote on Gorsuch, or if that’s not possible, they’ll love to bring enough of them over to their side so that they’d have the numbers to break the filibuster.
Gorsuch can already count on every Republican vote. Since that is the case, it would be politically brainless for him to play up any conservative positions he has in order to win over a constituency that is already entirely in his corner. From this perspective, the very worst thing Gorsuch could do is come out as fanatically conservative, which would play into the hands of Democratic characterizations of him prior to the hearings.
Perhaps Senate Republicans, with a non-combative, “mainstreamed” Gorsuch, can get eight Democrats to come over to their side, which would be all they need to break a filibuster.
With that said, the likeliest outcome is that McConnell will need to go nuclear. But the point is that it was in Gorsuch’s best interests to “play it safe” regarding politically explosive issues like abortion.
3. Other Pro-Life Justices Answered Similarly in Gorsuch’s Position
Another reason conservatives shouldn’t worry is that this is how other conservative stalwarts have answered during their Senate hearings.
When asked whether he would overrule Roe, Scalia replied: “I do not think it would be proper for me to answer that question.”
When asked about Roe, Clarence Thomas called it “one of the more important cases,” adding:
I think it is inappropriate for any judge who is worth his or her salt to prejudge any issue or to sit on a case in which he or she has such strong views that he or she cannot be impartial. And to think that as a judge that you are infallible I think totally undermines the process. You have to sit. You have to listen. You have to hear the arguments. You have to allow the adversarial process to think. You have to be open. And you have to be willing to work through the problem.
For his part, John Roberts, who would be installed as Chief Justice soon after his hearings, admitted that even if he felt Roe got it wrong, that in and of itself would not automatically justify overruling it. In a prior hearing he called Roe “the settled law of the land.”
Judge Alito had this to say at his hearing: “I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent.” This is in response to a question about whether Roe, which has been reaffirmed under stare decisis, is stronger than a regular precedent. Alito suggested that a precedent which affirms a prior precedent is yet another factor to take into account when investigating the matter anew.
None of this is fundamentally different from the approach taken by Neil Gorsuch. The difference is these other judges had paper trails connecting them to a strong anti-abortion stance prior to their hearings. Gorsuch doesn’t. Yet the fact remains they treated these questions very similarly. They played up the utter importance of impartiality and independence of mind.
4. Although Gorsuch Does Not Have Judicial History With Roe, His Positions on Similar Matters — Particularly Euthanasia — Suggest He Would Uphold Life
Finally, conservatives should consider the conceptual similarities between the contemporary moral issues Gorsuch has written on and the question of abortion.
Gorsuch wrote a book called The Future of Assisted Suicide and Euthanasia, in which he had this to say:
All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong. … We seek to protect and preserve life for life’s own sake in everything from our most fundamental laws of homicide to our road traffic regulations to our largest governmental programs for health and social security. We have all witnessed, as well, family, friends, or medical workers who have chosen to provide years of loving care to persons who may suffer from Alzheimer’s or other debilitating illnesses precisely because they are human persons, not because doing so instrumentally advances some other hidden objective. This is not to say that all persons would always make a similar choice, but the fact that some people have made such a choice is some evidence that life itself is a basic good.
In the book, Gorsuch sets forth a thesis he calls the “inviolability-of-life principle.”
So that settles it, then? If euthanasia is out, abortion goes too? Not so fast.
It could be that because abortion has been legally upheld whereas euthanasia has not, this constitutes a difference that would matter to Gorsuch. This certainly accords well with his acknowledged respect for precedent.
Yet in the end, the inviolability-of-life thesis would seem to suggest Gorsuch would rule to protect fetal life, if indeed he recognizes that the fetus is a human life.
Then again, even if he doesn’t recognize this in the Constitution, he may still overturn Roe by striking down the constitutional right to an abortion. As I argued above, the two matters are conceptually distinct.
Either way, in my judgment, conservatives have little reason to panic.