Neomi Rao reacts after President Trump announced that he is nominating her to replace Supreme Court Justice Brett Kavanaugh on the D.C. Circuit Court of Appeals at the White House in Washington, D.C., November 13, 2018. (Jonathan Ernst/Reuters) Senator Josh Hawley is reported to be unsure of where she stands on abortion and Roe v. Wade.
Senator Josh Hawley (R., Mo.) has some concerns about Neomi Rao, President Trump’s nominee to the D.C. Circuit Court of Appeals to replace Justice Brett Kavanaugh. According to CNN, Hawley is not sure where she stands on abortion, Roe v. Wade, and substantive due process, and he worries about her lack of litigation experience.
Carrie Severino of the Judicial Crisis Network has sharply criticized Hawley for expressing concerns about Rao. She says he is acting like his predecessor, Claire McCaskill, assassinating Rao’s character and trying to “make headlines” rather than work to confirm her. Severino’s organization is threatening to run ads in Missouri.
A few points:
• In principle, someone who believes that abortion should generally be legal could also hold the view that Roe was (and that its successor cases were) a constitutional outrage that should be overturned.
• In practice, the odds that someone would, given the chance, vote to overturn Roe are obviously lower if she approves of the policy it imposed.
• Pro-lifers have been burned so often by Republican judicial nominees that many of them are always, and justifiably, on high alert.
• Some supporters of Rao’s confirmation are making an error in claiming that her views on abortion and Roe are irrelevant, since she is being nominated for the D.C. Circuit rather than the Supreme Court. Abortion-related cases have come before the circuit. Also, the circuit is considered a good launching pad for the Supreme Court. If a Republican nominee who favored keeping Roe made it to the D.C. Circuit, pro-lifers would have two more chances to block her from getting on the Court: when a Republican White House was considering nominating her for a vacancy there, and when she had been nominated. The White House consideration process has shown itself in the past to be insular, hard to influence, and (at least in previous administrations) prone to catastrophic mistakes. In the confirmation process following a nomination, Republicans would be under strong partisan pressure to approve a nominee.
• Under the circumstances, then, it’s reasonable for conservative senators to raise any concerns and do thorough vetting.
• Raising doubts about Rao’s reliability on some issues could well be unfair to her. She may have wholly sound views on substantive due process and view the Court’s abortion jurisprudence the same way as Justice Thomas, for whom she clerked. But fairness to her, while important, is less important than moving the courts in the right direction.
• Getting Trump’s nominees confirmed is not Senator Hawley’s job, and so Severino’s criticism that he is making Rao’s confirmation harder is, in addition to being obvious, beside the point.
• Senator Hawley, who is up for reelection in Missouri in 2024, probably doesn’t need to worry about attacks over his going the extra mile to represent pro-life interests in the judicial-confirmation process.