The Supreme Court, or more specifically the vacancy created by Antonin Scalia’s death almost a year ago, was one of the (many) factors that proved decisive in the 2016 election. By many accounts, it was the prospect of a Democrat filling that seat that persuaded conservative evangelicals to support Donald Trump en masse, when they might have decided to stay home rather than back a philandering, amoral candidate whose efforts to pander to them were as transparently phony as a $3 bill.
According to exit polls, 81 percent of white evangelicals voted for Trump, which may be the most lopsided vote among this group in history (survey data are a little spotty, but it looks like the widest margin at least in decades).
And now it’s time to give them, and other conservatives, what they want, particularly on abortion:
President Trump has narrowed his choices for the Supreme Court, consulted with congressional leaders and says he will announce a nominee next week.
Trump has said he will choose from a list of 21 possibilities released during the campaign, and sources involved in the process say a handful of federal appeals court judges have emerged at the top: William Pryor of the U.S. Court of Appeals for the 11th Circuit in Atlanta, Neil Gorsuch of the 10th Circuit in Denver, Thomas Hardiman of the 3rd Circuit in Philadelphia and Raymond Kethledge of the 6th Circuit in Cincinnati.
In a tweet early Wednesday, Trump said he would make the decision on the Supreme Court pick on Feb. 2.
There are many issues to be concerned about when the Senate takes up this nomination, but let’s be honest: We all know that most of the debate is going to be about abortion, specifically whether Roe v. Wade will be overturned. And I can tell you exactly what’s going to happen.
Here’s how it will go: Despite the fact that the president has insisted that he will appoint a justice who will vote to overturn Roe, and despite the fact that every conservative interest group will insist that his choice must be a vote to overturn Roe, and despite the fact that it’s in the Republican Party platform to overturn Roe, and despite the fact that nearly every Republican politician wants to overturn Roe, and despite the fact that the nominee will have been chosen only because all those people feel sure he’ll be a vote to overturn Roe, the nominee will go before the Senate and the country and pretend that he has no opinion on whether Roe should be overturned. But he’ll hint that he might vote to uphold it, because it’s a precedent and he has deep respect for precedent, and he has an open mind, so who knows. This will be a lie, but it’s what he’ll say.
How do I know that? Because it’s what Republican Supreme Court nominees always do in their confirmation hearings.
The denial takes a couple of different forms. Its most extreme version was embodied by Clarence Thomas, who began with the maybe-I’ll-uphold-it claim. “I believe the Constitution protects the right to privacy,” he said. “And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.” But then he went even further, saying in response to a question that not only had he not made up his mind about Roe, but he had never in his life even had a conversation about the most controversial legal issue of our age: “Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.” There could not have been a single person in America, liberal or conservative, who thought Thomas wasn’t lying.
In its slightly less laughable version, the denial is usually a combination of the following assertions: I don’t want to prejudge any case that might come before the court. Precedent is important. Nothing I said before now applies, because the role of a justice is so unique. My personal views, if I should happen to have any, which I probably don’t, would never enter into my rulings.
So John Roberts deflected questions about abortion, saying, “while I’m happy to talk about stare decisis and the importance of precedent, I don’t think I should get into the application of those principles in a particular area.” He also insisted that “it’s my job to call balls and strikes, and not to pitch or bat.” Samuel Alito said that while as a Reagan administration lawyer he had written memos urging the overturning of Roe, he had practically undergone a brain-wipe upon donning judicial robes. “That was a statement that I made at a prior period of time when I was performing a different role,” he said, and “when someone becomes a judge, you really have to put aside the things you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.” So no problem.
Even Antonin Scalia, who had a reputation for forthright expression of his views, sought in his confirmation hearings to fool the senators into thinking he might uphold Roe. “There are doubtless laws on the books apart from abortion that I might not agree with, that I might think are misguided, perhaps some that I might even think in the largest sense are immoral in the results that they produce,” he said. “In no way would I let that influence my determination of how they apply. And if indeed I felt that I could not separate my repugnance for the law from my impartial judgment of what the Constitution permits the society to do, I would recuse myself from the case.” In a happy accident, Scalia’s repugnance for abortion and his beliefs about the Constitution just happened to line up perfectly on every abortion case that came before the court.
When Republican nominees perform this absurd charade, the Democratic senators inevitably find it maddening, since everyone knows how full of it the nominee is. So the senators try to ask the question a dozen different ways to see if they can come up with a key that will unlock the truth, and they inevitably fail.
As it happens, among the finalists for Trump’s pick, there is one judge, William Pryor, who has an unusually clear record of statements on abortion in general and Roe in particular. He has been such an outspoken critic of the decision, calling it the “worst abomination in the history of constitutional law,” that it would be almost impossible for him to claim that he might uphold it. Does that mean that he won’t be nominated? To know the answer to that question you’d have to get into Trump’s mind, and who knows what’s going on in there. What we do know is that whoever gets the nomination, he’ll be a vote to overturn Roe. No matter how much he tries to deny it.