Federal Courts and Nominations

On Roe v. Wade, It’s Trump v. Gorsuch

Earlier this month, NBC News White House Correspondent Hallie Jackson famously asked White House Press Secretary Sean Spicer to answer a tough question that revealed the pretzel logic behind President Trump’s claims that then-President Obama wiretapped Trump Tower during the 2016 campaign. 

If Trump stands by the evidence that he claimed to have (but won’t share) for his wiretapping charge, Jackson asked, why would Trump then need to call on Congress to find evidence for that same wiretapping?  Spicer replied with a non-answer word salad that rivaled Melissa McCarthy for self-parody.

Yesterday, during a break in the confirmation hearings for Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, Senate Judiciary Committee Chairman Charles Grassley lobbed another question in Spicer’s direction.
A reporter asked Grassley about the discrepancy between the promises that Trump has made to conservative voters about his Supreme Court nominee via a litany of litmus tests, versus the flat denial from Gorsuch that he was confronted with, or agreed to meet, Trump’s abortion litmus test.
Notwithstanding the newsworthy admission from Gorsuch elicited by Senator Blumenthal – that in fact Trump had mentioned the subject of abortion, perhaps even Roe v. Wade, in his interview of Gorsuch – the Judge stated that he “would have walked out the door” on the President if Trump had presented his abortion litmus test to Gorsuch. 

That’s the right thing to say – litmus tests have no place in the selection of a judicial nominee, who should never guarantee a vote in a particular case in order to get on the bench. Gorsuch’s answer, however, raised a conundrum. Trump said, when he announced his nomination of Gorsuch, that “I am a man of my word” This of course followed a presidential campaign during which Trump repeatedly promised that he would only appoint pro-life Justices who would “automatically” vote to overturn Roe.

Given the prominence of Trump’s abortion litmus test, many of his supporters might have been surprised to hear from Judge Gorsuch that the question of whether he would overturn Roe did not come up in his interview with Trump. When asked by a reporter yesterday about how to square that, Senator Grassley answered that people should believe Gorsuch, ending with a jab at Trump: “[Gorsuch] was there, we weren’t there. So, I don’t know what else you can do unless you want to ask the President himself.”
That’s an excellent idea, Senator Grassley. 
Someone should ask Spicer at today’s White House press briefing: Did President Trump, his team, or allied organizations present Gorsuch with Trump’s litmus tests? If not, how exactly did they satisfy Trump’s base voters and the conservative organizations supporting him that Gorsuch meets Trump’s promised ideological purity? Did Trump break his word?
Judge Gorsuch rightly decried the use of a litmus test and acknowledged that Roe was precedent. But he never applied his articulated factors for overturning precedent to the Roe ruling, and never spoke in detail about the right to choose an abortion in the way he spoke, for example, about the constitutional protections against unreasonable searches and seizures. 

Without more disclosure from Gorsuch about his understanding of the Constitution’s protection of a woman’s right to equal citizenship and personal liberty at today’s second day of questioning before the Judiciary Committee – or an admission from Trump that he did not, in fact, take steps to keep his litmus-test promise to conservative voters – then Senators, and the American people, can only assume that Gorsuch passed Trump’s litmus tests one way or another, the particulars of which we may never know. 

It is a cloud hanging over Gorsuch’s confirmation hearing that Trump could easily dispel. 

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