The question used to be posed in moments of crisis, real and imagined: if you had to attack the machine gun nest of an enemy, which five men would you take to go with you? These days, I might look first for Josh Hawley, that accomplished lawyer and senator from Missouri. For he has been rare among his colleagues in showing a spirited quality, a willingness to plunge ahead, make the argument, throw himself over the rampart, and pull the pin on the grenade, even without knowing whether it would go off.
Hawley has expressed, published here at Public Discourse, the outrage that should have been triggered widely among Republicans in the Senate over the defection of Neil Gorsuch in the case on “transgenderism” (Bostock v. Clay County, Harris Funeral Homes v. EEOC). That case provided, for transgenderism, what Roe v. Wade provided for abortion. It threatens to radiate outward, to disfigure our culture in ways moving even more deeply, for it raises the question even more starkly as to what constitutes the “human person,” the subject and object of our laws.
Josh Hawley made explicit the exasperation of many conservatives about the supposed genius that has been guiding the nominations to the Supreme Court made by Republicans over the years. Since the days of Richard Nixon, the Republicans have dominated appointments to the Court, and since the 1970s the issue of abortion has been the issue that has poisoned hearings on confirmation for the Court. The Republicans have been transformed over these years into the pro-life party. And yet, that history has been one of defections on the part of Justices who were expected, at some point, to overturn Roe v. Wade. And now, with John Roberts’s oscillations, it seems even less likely that there are five votes to overturn Roe.
That sense of things, ringing in forcibly with the Bostock case and June Medical, finally moved Hawley to speak out loud the sentiments so long held by conservatives. In a second piece for Public Discourse, Hawley has declared that he will have no more of the cleverness of all of the Republican “handlers” guiding the nominees through confirmation. That “established” sagacity has held that it is best for the nominees to express no views on abortion, to give not a hint of any reservations about Roe v. Wade as anything less than a “settled precedent.” Not only is there a danger of confirming the fears of the Democrats on any Republican nominee, but the point even more critical is that one should do nothing that draws attention and “scares the horses.” The “horses,” in this case, would be Susan Collins, Lisa Murkowski, or any Republican senator given to easy trembling in a closely divided Senate. Hawley decided that he would have no more of this charade. He declared that he himself would no longer vote to confirm any nominee to the Court who could not get clear on the reasoning in Roe v. Wade and affirm its wrongness.
That is a telling, stirring move, but Hawley must know that it has the romantic quality of that scene in the classic British revue, Beyond the Fringe, where a commanding officer in the Royal Air Force was trying to inspire one of his men to fly on a kamikaze mission. And he says, “Smedley, we desperately need someone at this moment to make a Futile Gesture.” Hawley knows that he is not likely to bring any of his Republican colleagues to his side. But since he has come this far, I wonder if he would be open to a plea, from a friend, to use his spirited concern here with far more leverage by turning from a frontal assault to jujitsu: With the simplest move—with the shifting of the question—he can put the burdens of defense and embarrassment on the Democrats and transform the situation for Susan Collins and Lisa Murkowski. And at the same time, he could lay the groundwork for his own, more ambitious move.
Democrat Abortion Extremism
The Democrats in Congress have staked out in their votes the most radical position yet on abortion. In two separate votes in the House, in September 2015 and January 2018, virtually every Democrat (save five or six) voted against the bill that would punish the surgeon who kills a child, born alive, who has survived an abortion. The Born-Alive Survivors of Abortion Protection Act had come forth in response to the notorious killings done by Dr. Kermit Gosnell in the abattoir he ran in Philadelphia. But for some of us who had a hand in passing the original Born-Alive Infants’ Protection Act in 2002, the revelations in Philadelphia had given us the chance to restore the penalties that had been stripped from that original bill. They had been stripped away, with excessive caution, to avert a veto from Bill Clinton. But there had been no attempt to restore the penalties when George W. Bush came into office, and perhaps with those penalties removed, it became slightly easier for Harry Reid to bring the bill to the floor when the Democrats still had control of the Senate. The Democrats didn’t especially like it, but they were embarrassed enough not to vote against it, and so on a voice vote the bill passed.
But now, a dozen and more years later, the Democrats have changed. They are now even more emphatically, and even more brazenly pro-abortion, with no qualifications or conditions. And when the new bill came to the floor of House, every voting Republican voted for the bill, while 177 Democrats voted against it the first time (in September 2015) and 183 voted against it the second time (January 2018). When Ben Sasse finally brought the bill to the floor of the Senate in February of this year, the Republicans were firmly behind the bill. But they could not get a vote because the Democrats in Senate were as united as their allies in the House in their opposition to this measure to protect children born alive.
What we have here then, as the settled Democratic position, is the most radical position, as I say, that has ever been taken: For the Democrats, that right to abortion, proclaimed in Roe, is a right that extends beyond the pregnancy and involves nothing less than a right to kill a child born alive who survives the abortion. Former President Obama has added the finishing touch here by offering his studied opinion that the Born-Alive Acts would be unconstitutional. That is, he confirms the sense that Roe v. Wade would indeed have this radical reach, well beyond the pregnancy itself, entailing the right to kill a child born alive, who is quite detached now from encumbering the life of that woman who had borne her.
And yet, that would surely come as jarring news to most Americans. Since the surveys have begun on abortion, it has been hard to find more than about 24 per cent of the public favoring abortions, for any reason, up through the entire length of the pregnancy. To say that Roe v. Wade entails the right to kill even the baby that emerges at birth would tell us that Roe v. Wade is hardly the “super precedent” so widely proclaimed, for if Obama and the Democrats are correct, the very meaning of Roe, forty-seven years later, is hardly settled at all in the minds of lawyers—or the public.
Turning the Tables
The surprising thing is that Mr. Trump has not sought to make use of this point to turn the tables on his opponents. But it may be even more surprising that those accomplished Republican lawyers on the Judiciary Committee in the Senate, have not used the hearings to induce their Democratic colleagues to make their positions here explicit and claim the name that is truly their own. When the Democrats wish to ask about Roe v. Wade, the Republicans and the nominee could ask them to explain how they themselves understand the holding in that case, for there has been much confusion on that point among lawyers, let alone members of the public. If anyone dodges or dissembles, the Republicans could recall to them the votes they have cast. Or they could ask whether the Democrats in the Senate stand on this matter with the Democrats in the House—and with former President Obama.
Under these conditions, with the challenges coming from the Republican side, and the answers too embarrassing to deliver out loud, we may discover that the Democrats suddenly lose their appetite for this issue in the hearings. But at the same time, the Republican senators could transform overnight the situation of Susan Collins, Lisa Murkowski, and even some Democrats. Faced with that undisguised, raw right to abortion, with no discernible limits, the natural reaction of Collins and Murkowski is very likely to make it clear that they are “not that extreme in the support for abortion.” It becomes easier for them then to discover anew that even many people who call themselves pro-choice think that some abortions may be rightly restricted or denied.
This simple shift I’ve described in the hearings on confirmation would seem to be manifest in its advantages. And yet moves of this kind have triggered only recoil from the “handlers” who have walked the Republican nominees through their hearings. They have treated as anathema, as foggy-headed, any move that might simply start an argument with Democrats on the Committee—as though an argument could not indeed prove far more embarrassing and damaging for the Democrats, or yield up news that catches the attention of the public. In the style of the late Herman Cain, we may turn now and ask those notable handlers—and ask now with more sharpness after the Bostock case: That strategy of studied evasion and silence, that strategy of putting your head down and taking the pounding—just how has all of that worked for you—and the rest of us?
Co-Equal Branches and the Constitution
Of course, Senator Hawley not only plays a role in confirming justices to the Supreme Court, he also plays a role himself in interpreting the Constitution and passing legislation. Yet the deepest irony in Hawley’s spirited critique is that he has evidently absorbed the same state of mind as that jurisprudence against which he is now railing.
For Hawley’s inflamed reaction make sense mainly as a reaction to the morally empty jurisprudence that has been served up to conservatives. That jurisprudence prides itself on putting the accent on mechanistic tests and procedures, while studiously avoiding any attempt to address the substance of the moral questions that have been at the heart of these cases on abortion, same-sex marriage, and transgenderism. On abortion and marriage, the conservatives had been content to rest on the “argument” that these issues are nowhere mentioned in the text of the Constitution. And so judges would have no ground on which to declare any “rights” on these matters flowing from the Constitution. But the Constitution contained no mention of “marriage” when the Court in 1967 struck down the laws in Virginia that barred marriage across racial lines. And no conservative luminary has been willing to call into question that decision in Loving v. Virginia.
Hawley apparently has little awareness of how much he has absorbed this conventional lines of conservative jurisprudence, but that point was revealed in the most telling line of his protest: How long, he asked, would take for the Republicans to “ask our nominees to the Supreme Court … to recognize Roe as the outrage it is.” But what precisely was that “outrage”? Was it the license to kill innocent human beings in the womb for reasons that need not rise above self-interest? No, for in the style of the late Justices Rehnquist and White, the dissenters in Roe, he transmutes the question: The fault of the decision lay in the fact, as he said, that the decision “has no basis in the Constitution. None … None of the Constitution’s specific and enumerated guarantees of privacy even begin to legitimize the taking of innocent life.”
In other words, there had been no mention of abortion in the text of the Constitution. And was he offering now to deal with the “outrage” of the killing by activating again the powers of Congress to protect human life and offer a corrective counter to the decisions of the Court? Or did he see the role of the Congress simply to ask more demanding questions in the appointment of judges, the men and women who truly will rule us? Beyond that, his “remedy,” the usual remedy of conservative jurisprudence, was to return the matter of abortion to the separate states, some pro-life, some fiercely pro-abortion. But surely nothing in that move offers a remedy to the “outrage” he condemns in the killing of the innocent.
In fact, the embarrassment here is that Hawley follows the path of Justices White and Rehnquist, in their dissent in Roe, by transmuting the wrong—and the victim. The killing of the innocent child is displaced from the center of the focus; and the “victims” become now the voters in the separate states, who have been deprived of the freedom to deliberate on the question of how much they “valued” the life of the child when set against the interests and desires of the pregnant woman.
Hawley looses the battle cry against “Judicial Imperialism,” but he leaves that structure of dominance firmly into place. What he conspicuously forgoes is the path of calling on precedents stemming from the days of Lincoln down to our own, precedents involving the authority of the political branches to counter at times and limit the holdings of the Supreme Court.
Lincoln and his Congress sought successfully to counter the decision in Dred Scott through a combination of legislative measures and administrative decisions. Hawley should lead the charge in doing the same to Roe. And with Bostock. But with Bostock, there would be no need for a confrontation so portentous at the “constitutional level.” The Court in Bostock was affecting to give us a reading of a statute, the Civil Rights Act of 1964. It certainly falls to Congress to alter the statute to avoid any misconstruction on the part of the Court. Justice Gorsuch had already suggested that the judgment in Bostock had no immediate application to any questions that may arise over bathrooms and locker rooms. Justice Alito thought that the suggestion was quite disingenuous.
But still, the opening is there, and it is confirmed by the fact that Congress had long ago made it clear that the ban on discriminations based on sex would not threaten Smith, Mt. Holyoke, Wellesley, or colleges that are still confined to women. Congress could readily reaffirm that point. And in the momentum of doing that, it could offer the same protections to all-female teams—but then, of course, to female locker rooms and bathrooms. Would it not also offer a salutary bit of news, for the Court and the country, if these moves find a buoying support coming from feminists and many liberal mothers? That simple move may offer a telling gesture in bringing the sentiment of the country, and the power of Congress, into play once again, to mark a limit to a holding of the Court. And it could not be misunderstood as anything but marking an objection to what Justice Gorsuch and the Court have done.
That there is still a flickering ember keeping that sense alive among the Republicans is owing in large part to the character of Josh Hawley, and two of his best allies in the Senate, Mike Lee (Utah) and James Lankford (Oklahoma). In the aftermath of the decision in Bostock, the Democrats saw the chance to enact, in a quick stroke, the Equality Act, passed in the House. That Act would make explicit that Civil Rights Act of 1964, would indeed cover not only discriminations based on sex but “sexual orientation, gender identity, or pregnancy, childbirth,” or anything that may involve “sex-based stereotypes.” That policy, enacted in a sweeping statute, would impart a fresh impetus to attacks at every level on people who bear reservations about homosexual acts or gay marriage or transgenderism. The move to pass the Equality Act was offered up to carry “without objection.” But only Josh Hawley, joined by Mike Lee and Jim Lankford, rose to register their objections. We might say, in old imagery, that three young senators stood at the bridge, to bar the force trying to push through, and in standing, they bought time. Time for the Republicans to get a second wind, collect their thoughts, summon anew their conviction, and recover their better selves.
And at moments of this kind, it’s that spirited Josh Hawley who becomes, for us, the “one thing needful,” or the truly Necessary Man.