Judicial Nominees Must Explicitly Acknowledge That Roe Was Wrongly Decided

I came to this floor three weeks ago to talk about the United States Supreme Court. I come today to revise and extend my remarks.

There are now five Republican-appointed justices on the court. Actually, Republicans have appointed eleven out of the last fifteen justices to the bench. Is this the conservative court that we have worked for? More to the point, is this a constitutionalist court?

When looking at the results of this last term, the only thing I can say for certain is that, in the words of the late Justice Scalia, “the imperial judiciary lives.” This is a court that freely rewrites congressional statutes, that has protected the worst left-wing precedents of earlier years, that in the final week of its term gave away half the state of Oklahoma for those who consider themselves constitutional conservatives.

These decisions are a clarion call to wake up and to acknowledge what is staring us in the face. Judicial imperialism is alive and well. It is marching on undaunted. For religious conservatives, these decisions are a call to action. Now is the time for us to be heard, and we can begin with what we expect of our nominees to the high court: what we expect them to understand, and what we expect them to affirm.

That brings me to the case that propelled religious conservatives into activism and politics in a new way over four decades ago. The case that for religious conservatives made the Supreme Court the great issue of the day: Roe v. Wade.

Now I know that, when it comes to the Supreme Court, we’re not supposed to talk about Roe. That’s the open secret on the right. It’s certainly what religious conservatives have been told for years. “Don’t mess up the Supreme Court nomination process by raising Roe! It’s imprudent. It’s in poor taste. It will divide our coalition.” We’re supposed to stick to talk about process, about methods, maybe throw in some talk about umpires, but do not talk about Roe. Well, the truth is that Roe is the reason we have a legal conservative movement to begin with. Roe is what propelled generations of religious conservatives to vote for Republican Presidents.

In forty-seven years, this moral and social injustice has taken the lives of 61 million unborn children. Republicans have said, “Vote for us, and we will undo this wrong. We will return this issue to the people.” And yet, all these years later, eleven Republican-appointed justices later, here we are. The nation is apparently no closer to the day when the Supreme Court will renounce this outrage, renounce its imperial pretensions, and allow the good and decent people of this nation to debate and decide this matter for ourselves.

And so I say to my Republican colleagues: How long must this go on? How many more elections must there be? How many more promises must be made? How many more justices must be appointed before we will expect of our nominees what the voters already expect of us? How long before we ask our nominees to the Supreme Court of the United States to recognize Roe as the outrage that it is?

Let’s just be frank. Roe is an illegitimate decision. It has no basis in the Constitution. None. It has no basis in the law. None of the Constitution’s specific and enumerated guarantees of privacy even begin to legitimize the taking of innocent human life.

Even liberal scholars recognize this. Whole books are written about what Roe vs. Wade should have said. Roe marks the point at which the modern Supreme Court decided that they would just impose their own social and moral and legal views on the nation—despite what the people want, despite what the Constitution says, no matter how the laws are written. 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 almost no sense of an obligation to try to be.” Roe is the very essence of judicial imperialism.

It is a brazen power grab by unelected justices imposing their moral and social views on the nation, just like another group of justices did in a case called Plessy v. Ferguson, and just like another group of justices did before that in a case called Dred Scott v. Sandford. They are the worst miscarriages of justice in our history. The worst judicial opinions of all time. Dred Scott and Plessy and Roe are abusive, morally repugnant decisions that wounded the soul of this nation. They dishonored this nation’s fundamental faith in the dignity and worth of every person.

For these reasons, Roe is no secondary issue. It is not something to be pushed to the side of the nomination process. Roe is central. Roe is a window into the constitutional worldview of a would-be justice. It is a measure of their sense of what a justice should be. If you believe that Roe was rightly decided, then there just is no two ways about it: you are a judicial imperialist. If you believe Roe was rightly decided, you believe that unelected judges should have the power to enact their own social views, to promote their own social agenda, regardless of what the Constitution says or what we the people have expressed preference for, voted for, and enacted into law.

And, I would add, it seems to be the case that when justices enact their views, they inevitably enact the views of a certain social class. Oh yes, the highly educated managerial front row of American society, the class of the faculty lounge in the C Suite: that’s what you get when judges govern America. But that’s not what the Constitution calls for. That’s not what the Constitution specifies. The Constitution says that sovereignty rests with We the People—that it should be the people who are in charge.

What the American people want and have written in their fundamental law and in their statutes should carry the day. The people have a right to run their own government. They have a right to expect their views to prevail, to have their Constitution be obeyed and to expect that the justices are appointed to their Supreme Court will abide by the Constitution’s terms as we the people wrote them.

And that is why I say today that I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.

I say again: I will vote for those nominees only, and for those nominees alone. And when I say “explicitly acknowledged,” I mean on the record, before their nomination. I do not want forecasts about future votes or future behavior, because frankly, I wouldn’t believe them. I don’t want promises of any sort. I want evidence that Supreme Court nominees will obey the Constitution and the law. I want to see in the record clear acknowledgment that a nominee understands Roe to be the travesty that it is. If that record is not there, then I will not support the nomination. I don’t care who does the nominating.

Now, some will say that this is yesterday’s battle—that we should just accept Roe and move on, that today’s Supreme Court is the best we could possibly hope for. To which I say: Every single life is worth fighting for, and I will not accept failure. I will not accept defeat. I take this stand because I believe it is what justice and fidelity to the law require of me in our time, of me and of those who would exercise the awesome power of judicial review entrusted to justices in Article Three of our Constitution.

I also believe it’s what the Republican Party owes the millions and millions of Americans who have made this cause the reason for their vote for many years. We owe it to these men and women of goodwill and faith who labor still, day in and day out, rejoicing in hope, patient in tribulation, and working for that time when justice will be done.