After President Trump put his name on a list of potential Supreme Court justice nominees, Republican Senator Tom Cotton of Arkansas tweeted, “It’s time for Roe v. Wade to go.”
Expect much less candor during Senate confirmation hearings from Trump’s actual nominee, Amy Coney Barrett. Even though she has written that abortion is always immoral, has made at least two judicial rulings restricting abortion access, and has been praised by anti-abortion groups, Coney-Barrett has also carefully avoided stating that she’s out to overturn Roe v. Wade — the landmark 1973 decision that gives women the right to choose abortion.
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Addressing Roe v. Wade in Senate confirmation hearings has become what Nancy Gertner, a Harvard law professor and retired federal court judge, calls “a kabuki ritual. . . . There really is no question that these candidates will oppose Roe. They can say next to nothing; we all know the answer.” That kabuki ritual should fool no one. What Trump says is more important than what the nominee doesn’t say. As a candidate, Trump promised to appoint a Supreme Court justice who would “automatically overturn Roe v. Wade.” Trump sees a chance to drive turnout among abortion opponents on Election Day if he appoints a true enemy of Roe to the court, and the Republican majority in the Senate gives him the votes needed to achieve that goal.
That’s the prism through which this nomination should be viewed. It creates “an existential crisis for the right to choose and the right to privacy,” said Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts. Because of that, she said, “It is appropriate to demand strong answers” on reproductive rights from the nominee.
Based on the history of Senate confirmation hearings, the country won’t get anything resembling clear answers from Coney Barrett. Call it the Bork effect. Asked to explain his “apprehension” about the decision during his Senate confirmation hearings in September 1987, Robert Bork said: “Roe v. Wade contains almost no legal reasoning. We are not told why it (abortion) is a private act — and if it is, there are lots of private acts that are not protected — why this one is protected. . . that’s what I object to about the case.”
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That — and other blunt assessments — ended Bork’s high court aspirations. It also ended the desire of future Supreme Court nominees who might share his beliefs to express them, out of fear of derailing their own nominations. During his confirmation hearing in 1991, for example, Clarence Thomas said he believed Americans had a constitutional right to privacy, but declined to tell the Senate Judiciary Committee whether he believed the Constitution provided a right to an abortion. In 2017, Neil Gorsuch called Roe “the law of the land.” In 2018, Brett Kavanaugh also called it “precedent” but would not say whether he was inclined to reconsider it. The tiptoeing is a deft political calculus to get confirmation as the majority of Americans support women’s right to choose; a 2019 Pew study shows that 61 percent of Americans believe abortion should be legal in all or most cases.
Calls for more clarity this time around are coming from abortion opponents, who were disappointed when Chief Justice John Roberts cast the deciding vote this year in a ruling that rejected a Louisiana law restricting abortion access, consistent with the Supreme Court’s past decision (from which he had dissented) that struck down a similar law in Texas. After that, Senator Josh Hawley, a Republican from Missouri, said, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.”
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Some argue that clarity runs up against the need for Supreme Court justices to be able to apply laws to real facts that come before them. But it’s possible for justices to be candid about their overall position on a political issue without prejudging how they’d rule on specific cases, thereby maintaining their integrity as independent arbiters.
Unfortunately, the last thing Trump seems to care about is judicial independence and integrity. He has shown that his priority is Trump, and survival on Election Day. To that end, he has been touting a mission to end legal abortion by reshaping the court to appeal to his base as a path to a second term. It’s important to remember that no matter what Coney Barrettsays during a Senate confirmation hearing, an equal commitment to ending legal abortion is probably what got her there.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
