There are less than 100 days before the November election, and Republicans are very worried about the outcome.
Sen. Josh Hawley (R-MO) let that fact slip Sunday in an interview with the Washington Post. To be clear, Hawley didn’t actually say out loud that Republicans are worried President Donald Trump won’t get reelected or that Democrats will take control of the U.S. Senate. Instead, Hawley, a member of the Senate Judiciary Committee, said that any future U.S. Supreme Court nominee would have to be willing to publicly disavow Roe v. Wade—and thus the constitutional framework for legal abortion altogether—before gaining his support.
Hawley’s statement is equal parts saber-rattling and conservative truth-telling, and while it’s easy to dismiss his comments as the usual bluster from the fringes of the legal conservative movement, doing so would be a grave mistake.
It is clear that Trump’s criminally negligent mishandling of the COVID-19 outbreak and his administration’s violent response to police violence protests across the nation threaten to derail his reelection bid and cost Republicans control of the Senate.
Roe has collapsed and Texas is in chaos.
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Democrats could be on the verge of a power sweep, and that means Republicans need their base to show up and vote in November. And there is no issue conservatives more reliably show up for than abortion rights and the Supreme Court. Quite simply, Republicans needed someone to chum the waters to make sure the base showed up to support Trump and down-ticket Republican races. And on Sunday, Hawley offered up fresh meat to conservatives in the form of a Washington Post interview designed to light up the discourse on Twitter. Predictably, it did just that.
Hawley’s interview does more than just give legal journalists and pundits a new outrage for the week. It very intentionally moves the goalposts for Republicans on judicial nominations. If the other Republican members of the Senate Judiciary Committee disagree with Hawley, then it’s now on them to say so publicly. Failing to do so will allow Hawley’s hard-line to become the party default.
Let’s be frank. Hawley just said the quiet part out loud when it comes to Republicans, judges, and abortion. A political mission of appointing judges to overturn Roe v. Wade is the default position of the Republican Party, but one they’ve largely hidden behind a veneer of platitudes about deference to precedent. But with 200 Trump-appointed judges and counting on the federal bench, many of whom won’t even say Brown v. Board of Education—the case that ended legal racial segregation in public education—was rightly decided, that veneer is fading fast.
Sunday’s chest-thumping from Hawley on judges and abortion should also sound familiar to anyone who has followed his political career. As Missouri attorney general, Hawley was a vocal abortion rights opponent who made pledging to confirm Supreme Court justices opposed to Roe v. Wade into a hallmark of his Senate campaign. Hawley has built a pretty successful name for himself in conservative circles by attacking reproductive autonomy. To that end, the interview with the Post was just more of the same from him.
But while it may be same old, same old from Hawley, his comments reflect a dangerous escalation by conservatives in their war on legal abortion.
There is no reason to think that Trump would ever nominate anyone to the federal bench—let alone a potential Supreme Court justice—who was supportive of abortion rights. After all, Trump ran on a pledge to nominate judges who would recriminalize abortion. And many of Trump’s appointees would likely have no problem making the kind of public disavowal of widely accepted principles of constitutional law that Hawley demanded in his Post interview, except for the fact that such behavior is considered gauche and unseemly for a federal judge. Hawley’s interview Sunday signals to those more radical Trump appointees that they have the political cover they need to start upending abortion rights in the lower courts. And with at least a dozen abortion rights cases lingering in the appellate courts right now, we could see real soon if any of those Trump judges will take Hawley up on his offer for political cover.
Finally, Hawley’s statements help to shift away from the legal academy’s idea that overturning Roe simply kicks the question of legal abortion back to the states. That’s not what Hawley told the Post, and frankly it’s not what this new generation of conservative thinkers believe. They want a decision that outlaws abortion at the state and the federal levels. And on Sunday, Hawley let the public know those are the only judicial candidates he is willing to consider.
Does Hawley speak for the other Republican senators on the judiciary committee? That’s a good question, especially after Justice Ruth Bader Ginsburg’s recent announcement that she was undergoing another round of cancer treatment. Ginsburg has said she has no plans on retiring any time soon, but it’s clear Republicans are gearing up for the possibility that Trump gets to appoint a third Supreme Court justice. On Sunday, Hawley fired the first warning shot to let us know that if a vacancy happens, Republicans plan to make it into a referendum on legal abortion.