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Hawley Enters the 2024 Top Tier Promising a Roe Litmus Test

Provocative stances against China and abortion have propelled the youngest senator to acclaim on the Right.
Senate Judiciary Committee Markup

“This kind of garbage is hard to take,” Senator Josh Hawley said last October, an eon ago. “LeBron, are YOU educated on ‘the situation’? Why don’t you go to Hong Kong? Why don’t you meet the people there risking their lives for their most basic liberties.” The heir to Michael Jordan had just tweeted some equivocal language on the situation in the Chinese administrative region— a perspective perhaps undergirded by his league’s dicey relationship with the regime in Beijing.

But Hawley was just getting the ball bouncing.

“Now try #FreeHongKong,” Hawley said last month, after Mr. James — perhaps the world’s most famous athlete — affirmed his support for Adrian Wojnarowski, a legendary ESPN reporter suspended for emailing Hawley’s press office an expletive. For a figure with naked presidential ambition — at forty, Hawley is just older than many pro athletes in their twilight — picking a fight with one of America’s most feted figures would seem a clear no-go. But not everyone is Josh Hawley. 

To say Senator Hawley is a young man in a hurry is to denigrate mere, routine speeders. Of course, politics is a craft where the police have long been defunded. It’s America’s autobahn. Were it not so, no doubt (turned in by leadership on the Hill) some  would charge Hawley with reckless driving. 

“Let’s just be frank, Roe is an illegitimate decision,” Hawley said on the floor of the Senate last week, of the Seventies Supreme Court decision that by fiat guaranteed piecemeal abortion rights. “It has no basis in the law. … I say, today, I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.”

Hawley, emeritus of Stanford and Yale Law, himself is a former Supreme Court clerk, to “the Chief” no less: John Roberts. He met his wife — Erin Morrow Hawley — also a Roberts clerk, under his stewardship. But Hawley last week hand-waved the achievements of the generation of conservatives Roberts embodies.  Perhaps there is no love lost between the junior senator from Missouri and his old boss. Roberts is known to dote on his female clerks, as he did the future Mrs. Hawley. But of the future Senator Hawley, Roberts is said to have recalled only that he “cared a lot about his hair.”

Hawley’s comments last week came in the context of a series of stinging defeats for the Right at the nation’s highest court. Roberts’ court is “one that freely re-writes Congressional statutes,” Hawley argued. “All these years laters — eleven Republican-appointed justices later — here we are. The nation apparently, no closer to the day when the Supreme Court renounce this outrage.”  While (now) almost all Republicans run as “pro-life,” and commit to voting for conservative jurists, Hawley’s decree is truly a new, blood-red line in the sand. Explicit “litmus tests” for the Supreme Court were for decades taboo, with potential nominees affirming their commitment to precedent, while refusing to comment on particular cases so as to not prejudice future decisions. No more. 

In fairness to Hawley, it was perhaps the left wing that cast the first stone— chatter on the Democratic side in recent years has been dominated by talk of stacking the Supreme Court with more justices, or impeaching Justice Brett Kavanaugh, who was accused of sexual crimes during his eventually successful confirmation. Leading presidential candidates on the Democratic side last year promised to appoint nominees who would do the opposite of Hawley’s wish— there were insistences  that aspirants explicitly affirm Roe. As Christopher Schmidt, a constitutional law professor at Chicago-Kent College of Law, told The Hill: “There’s been a discomfort with crossing that line. I think what we’ve seen over the past three years is a breakdown in that discomfort.”

Hawley, at times, can talk out of both sides of his mouth. In making his case for judicial corrective to Roe, he conveyed a nuance emblematic of his elite legal pedigree. But he also tipped his political hand. For it is one matter to believe in limited abortion rights, as many Americans do— it is quite another for the Supreme Court take the decision almost entirely out of voters’ hands, as the justices in Roe did. They found a Constitutional right where one dubiously existed. “In the words of the late Constitutional scholar John Hart Ely — who was, I would point out, a political liberal — Roe is not Constitutional law, and it gives no sense that it should try to be.” But, indeed, it is new path entirely — once Roe is defeated — to then champion legislation against abortion, as the conservative Hawley would be poised to do Roe “wounded the soul of this nation,” Hawley said. Its authors “dishonored this nation’s fundamental faith in the dignity and worth of every person.”

Republican leaders have tried to cut a middle way on this most divisive of issues before. The past two Republican nominees for president — now-President Donald Trump and now-Utah Senator Mitt Romney — previously favored at least some abortion rights (before renouncing that position ahead of their presidential bids). In 2008, then-Republican presidential front-runner Rudy Giuliani did run as “pro-choice”— while committing to appoint conservative jurists who would potentially bury Roe. In such a scenario, socially liberal states could preserve the practice of abortion, while socially conservative states —on this most personal of issues— would be freed up to cement the rights of the fetus. This Giuliani approach once kind of worked politically. Though he eventually lost nomination, the former New York mayor received the support of evangelical stalwarts such as the Rev. Pat Robertson.

But, in 2020, Hawley has shown he seeks Roe’s abolition as a pretext for the erasure of abortion rights altogether. “And yes, I do mean to compare Roe to those earlier cases” enshrining slavery and segregation, Hawley said at one point. “Because Dred Scott and Plessy and Roe belong together. They are the worst miscarriages of justice in our history.”

Hawley is making a few bets. 

First, though the nation is swiftly securalizing, abortion is a matter where conservatives have not been summarily routed, as they have on matters such as gay marriage or the legality of cannabis. In other words, he thinks that it will continue to be a lynchpin issue of the Republican Party for years to come. Second, Hawley appears to be quietly banking that Donald Trump will lose, rendering his pledge moot, for now. Supreme Court confirmations are already national melodramas— a confirmed Roe deconstructionist would struggle mightily to ascend, even under a re-elected President Trump and Republican Senate. But Hawley’s third bet is on himself. That the next Republican president to make a Supreme Court nomination will be him. He can make the case from the Oval. 



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