Don't Be Worried About Gorsuch's Abortion Comments

Abortion has been a hot topic so far in Judge Gorsuch’s confirmation hearing, resulting in several memorable exchanges between the (hopefully) future justice and Judiciary Committee Democrats.

Dianne Feinstein has been the senator most focused on the abortion issue, questioning whether Gorsuch would consider overturning Roe v. Wade, to which Gorsuch replied that he could make no guarantees on how he’d rule in any future case, but that “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.”

“[Roe] has been reaffirmed many times, I can say that,” he said later. He also said that if President Trump had asked him to overturn Roe, “I would have walked out the door.”

Some conservatives might be concerned by this, unhappy with any response that doesn’t amount to, “I will definitely push for the abolition of Roe the moment I am confirmed.” But this would be pretty stupid from a political standpoint, and also, as Gorsuch and others (including the late Justice Scalia) have said, not an attribute one should look for in a good judge. Judges should always wait until hearing the facts of a case before making any final decision.

I was also curious what Samuel Alito, an unquestionably fine conservative justice, had to say on abortion during his own confirmation hearing a decade ago: “What I have said about Roe is that if it were -- if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.”

And: “Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes—in Casey—based on stare decisis.”

Those responses are, substantively, little different from what Gorsuch has offered on the same issue over the last couple days. Of course, no one can predict with 100% accuracy how any given judicial nominee will rule once on the bench—see Souter, David, and Roberts, John. Confirmation hearings have become more about partisan maneuverings and avoiding verbal traps laid by the opposing side than a window into judicial thought. But Gorsuch’s statements over the last few days, on abortion and other issues, is fully in line with those of past conservative nominees.