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.

Some Tuesday Wisdom from the Next Supreme Court Justice

National Review Online has just unearthed a 2005 article written for the publication by a lawyer based in Washington, D.C., one Neil Gorsuch. Go and read the whole thing now.

Obviously, the brief portion of the piece where he touches on electoral politics hasn’t aged especially well. Lines such as “Democrats have already failed to win a majority of the popular vote in nine out of the last ten presidential elections,” are more interesting as historical relics than anything else. And, of course, the era of gay marriage being an automatic loser at the ballot box is over, even with the Supreme Court refusing Gorsuch’s invitation and ruling that all such marriages must be recognized by every state.

But all that is beside the point. The article beautifully illustrates the point, as salient now as it was ten years ago, that liberals rely on the courts and extensive litigation at their, and the country’s peril. Judges should defend rights and strike down laws when appropriate, to be sure. That’s part of the job description. But, again I stress, only when appropriate. Which should not be the open invitation that many on the Left seem to think it is.

And though Gorsuch addresses the Left specifically, conservatives would do well to heed his words. Too often, many on the Right see the great successes Democrats have had at enacting their agenda through the courts (such as a national right to gay marriage and abortion) and push too far in the other direction, calling for example, for the Supreme Court to declare abortion to be unconstitutional across the board. There are right and wrong ways of achieving goals, and this would undoubtedly be a very bad position for pro-lifers to support. If the Supreme Court merely overturned Roe v. Wade and returned the matter to the states and voters to decide, there could then be a much more substantial debate over the ethics of abortion. But to forbid it outright, by court order, would merely repeat the original mistake of Roe by removing abortion from the arena of meaningful public debate.

Liberals, conservatives, and the courts would do well to heed Gorsuch’s words. And Gorsuch himself would do well to remember them.

Norma McCorvey, RIP

Norma McCorvey, better known as Jane Roe—the plaintiff in Roe v. Wade—died over the weekend.

As the obituary at the link notes, she was a complicated woman—accidental architect of one of the most consequential Supreme Court decisions of the past century, and eventually one of its fiercest opponents. In 2005, she petitioned the Supreme Court to overturn Roe, on the primary basis that she, the plaintiff in the original case, regretted her part in the decision. Obviously, the Court declined.

Many believed her conversion to be less about true conviction than an attempt to capitalize on fame. Obviously, no one can know what her true intentions actually were, why she eventually abandoned and took up rhetorical arms against the cause that still considers her to be something of a patron saint. But her actions following her joining of the pro-life cause seemed sincere, if ineffective as tactics. Those, in the end, are all we can judge. Perhaps she acted so rashly, in picketing judicial confirmation hearings, out of a sense of guilt for what she had helped wrought. Or perhaps she was simply seeking attention.

Finally, one cannot help but wonder what became of the child that McCorvey bore only months before the Roe decision was handed down. Her pregnancy with that child, her desire to terminate that pregnancy, was what led the Court to consider the constitutionality of state abortion restrictions in the first place. It seems safe to assume that McCorvey never had any further interaction with, or knowledge of, the child she gave up for adoption. That individual presumably has no knowledge of the complicated role they have played in American history.

McCorvey, of course, did know. She might not have a famous name, and her death will get little coverage in a media obsessed with Donald Trump. But her legacy continues to have a deep and consequential impact on American life.

RIP.