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The GOP’s Josh Hawley problem on Amy Coney Barrett and Roe v. Wade

Citing a reluctance to "pre-commit," Supreme Court nominee Judge Amy Coney Barrett would not express views on the precedent of Roe v. Wade. (Video: The Washington Post, Photo: Drew Angerer/Pool/AFP via Getty Images/The Washington Post)
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The Q&A portion of Amy Coney Barrett’s Supreme Court confirmation hearing began Tuesday and went about as you’d expect. Democrats peppered her with inquiries that sought to glean how she would rule on key issues such as abortion and the Affordable Care Act, but Barrett — like many nominees before her — resolutely declined to provide specifics, saying they could be read as prejudging cases that might come before her.

Barrett, whose personal opposition to abortion and criticism of Roe v. Wade have been extensively detailed in recent weeks, testified she has made “no commitment” to either the White House or GOP senators on how she would rule on such cases. Sen. Dianne Feinstein (D-Calif.) also asked her whether she agreed with the late Justice Antonin Scalia that Roe was “wrongly decided,” and Barrett declined to weigh in.

No surprise there. This is how these hearings go.

What was particularly interesting, though, was how Republicans sought to drive home the idea that Barrett wouldn’t be a surefire vote for their side against abortion rights. They were essentially arguing, as they have on striking down Obamacare, that Barrett would not necessarily do the thing that they very much would like her to do.

This posture is difficult to square with the comments of one of their very own committee members: Sen. Josh Hawley (R-Mo.).

While Hawley’s fellow Republicans have made a clear strategic decision to cast Barrett as something of a blank slate on these issues, Hawley has gone in a very different direction. Even before Justice Ruth Bader Ginsburg’s death, Hawley has pushed something unusual: an explicit litmus test.

Hawley has said he would not support any nominee unless he or she clearly said that Roe, the landmark Supreme Court case establishing a right to abortion, was invalid precedent.

“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley told The Washington Post’s Robert Costa in July. “By explicitly acknowledged, I mean on the record and before they were nominated.”

Hawley added: “I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Hawley added to NBC News last month: “I’m going to start by asking the question that I articulated before the Senate, which is, does this nominee — has this nominee recognized that Roe vs. Wade was wrongly decided in 1973? … If they can’t beat the test, it doesn’t get further than that — I’m gonna vote no.”

Hawley has since said that Barrett does indeed satisfy his test.

“There’s plenty of evidence, I think, to demonstrate that she understands that Roe is — in my words — an act of judicial imperialism,” Hawley said last week. “And I feel very comfortable with her on that issue.”

So while the GOP is seeking to argue that it does not know how Barrett would rule on these cases, one of its own Senate Judiciary Committee members has effectively said he does.

There’s some nuance here. Hawley’s test required the nominee to have enunciated this position before nomination, not necessarily as part of the confirmation hearing. And Barrett has indeed suggested that she opposes Roe, signing on to a 2006 ad that said it was “time to put an end to the barbaric legacy of Roe v. Wade.” Barrett has also written things that suggest a precedent such as Roe might not be a “super-precedent” and could be overturned.

But it’s not 100 percent clear that Barrett has said Roe was wrongly decided. Something can be both “barbaric” and legal. Abortion rights opponents may believe the best way to get rid of Roe or its companion case Casey v. Planned Parenthood is via legislation or constitutional amendment. And floating the idea of overturning long-standing precedents isn’t the same as saying a specific one was wrong.

Hawley, though, demanded that the nominee would have “explicitly acknowledged that Roe v. Wade is wrongly decided.” And Barrett flatly declined to do so Tuesday:

FEINSTEIN: Do you agree with Justice Scalia’s view that Roe was wrongly decided?
BARRETT: So Senator, I do want to be forthright and answer every question so far as I can. I think on that question, I’m going to invoke Justice [Elena] Kagan’s description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs-up or a thumbs-down, and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly -- it would actually be wrong and a violation of the canons for me to do that as a sitting judge.
So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.
FEINSTEIN: So on something that is really a major cause with major effects on over half of the population of this country, who are women, after all, it's -- it's distressing not to get a straight answer. So let me try again -- do you agree with Justice Scalia's view that Roe was wrongly decided?
BARRETT: Senator, I completely understand why you are asking the question but again, I can’t pre-commit or say, “Yes, I’m going in with some agenda,” because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come.

Hawley’s stance on this makes plenty of sense for him personally. As someone believed to have potential presidential aspirations, it could be a calling card in appealing to religious conservatives in the GOP nomination process. But it puts his allies in a very uneasy situation, which is why many of them have been critical of his approach — or at least said they don’t agree with it.

Hawley will ask Barrett questions later on Tuesday. His past comments suggest this issue will be front-and-center for him. Indeed, how could it not, given its importance to him? But raising this issue would also serve to undercut the argument that the GOP has spent virtually the entire day seeking to drive home.

And as Republicans seek to continue making the case that Barrett wouldn’t be an anti-Roe justice, Hawley’s statement that his litmus test has been satisfied will loom.