FILE – In this June 21, 2017 file photo, Missouri Attorney General Josh Hawley speaks at a news conference in St. Louis. The Missouri attorney general’s office has issued 15 subpoenas in an investigation of a veterans charity founded by Gov. Eric Greitens. Hawley told reporters Friday, March 23, 2018, that the office subpoenaed The Mission Continues charity, Greitens’ gubernatorial campaign and the Greitens Group. Hawley says the office also subpoenaed staffers or former staffers at the entities. He wouldn’t say specifically who. (AP Photo/Jim Salter File)
Josh Hawley has never been coy about his pro-life stance. That stance is now potentially placing the freshman Senator from Missouri cross-wise with his fellow Republicans as he is raising questions regarding the appointment of Neomi Rao to the DC Circuit Court of Appeals.
Rao is President Trump’s nominee to replace Brett Kavanaugh now that he has joined the Supreme Court. Her prospective appointment drew headlines three weeks ago when Cory Booker decided to take another run at a “Spartacus Moment” by grilling her over her history of employing LGBTQ law clerks (notwithstanding the fact that Rao, having never been a judge, does not have law clerks.)
Now, Hawley, who sits on the Senate Judiciary Committee, is raising questions about Rao based on concerns over whether her record points to an inclination towards judicial activism. Yesterday morning, Hawley spoke with Marc Cox on 97.1 FM Talk regarding those concerns. He explained that he wants to see judges on the bench who respect life and will protect it to the maximum extent they can under current Supreme Court doctrine, particularly in light of the recent hard turn by the left on the issue. He referenced his co-sponsorship of the Born Alive Abortion Survivors Protection Act which, sadly, failed in the Senate yesterday.
Hawley stated he does not believe Rao has a strong record on life and noted that she has written things in the past which indicate she may be more of a judicial activist in this area. He further expounded on his thoughts on “substantive due process,” which is the doctrine under which Roe v. Wade was decided. As Hawley explained, the right to abortion does not appear in the Constitution but the Supreme Court nevertheless found a “substantive dimension” to the Due Process Clause which extended protection to it. This is why he believes Roe v. Wade is inconsistent with the Constitution and should be left up to the people and states to determine. Hawley said he gets worried any time he sees a candidate for the bench who takes a “warm view” of substantive due process because, to him, that is code for “making stuff up.”
Hawley also stated that he is working with the White House on this, noting that President Trump has a stellar record on judicial appointments. He believes the Judiciary Committee could vote on Rao as early as this week. In the meantime, he is reading all of her articles. He contended he does not care about her personal/private views. He wants to know what her record is. Hawley asserted that lots of folks in the pro-life community have raised concerns to him and that he is trying to do his due diligence and be consistent with what he promised to do when he ran.
Today, Hawley’s office released a letter he sent to Rao further outlining his concerns:
February 26, 2019
The Honorable Neomi Rao
Office of Information and Regulatory Affairs
Office of Management and Budget
Dear Ms. Rao:
I write to discuss your pending nomination to be a Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit.
I take seriously the Senate’s role in giving advice and consent to the President’s nominations to the judiciary. Like President Trump, I am committed to confirming judges who will adhere to an original understanding of the Constitution.
As a member of the Senate Committee on the Judiciary, it is my responsibility to scrutinize every appellate court nominee’s approach to constitutional interpretation. That includes asking nominees about their understanding of the Fourteenth Amendment and substantive due process—the atextual doctrine that Supreme Court justices have invoked to strike down, among other things, state laws limiting abortion, and to justify judicial activism. Understanding that lower court judges are bound by precedent, I will not vote to confirm nominees whom I believe will expand substantive due process precedents like Roe v. Wade and Casey v. Planned Parenthood of Southeast Pennsylvania.
I have reviewed your record as an attorney, as a professor, and as Administrator of the Office of Information and Regulatory Affairs. I have read through your academic writings. And we have had substantive discussions on these and other jurisprudential issues at your nominations hearing, through written questions, and in a private meeting in my office.
After this review, I continue to have questions about your judicial philosophy and approach to constitutional law. Namely, I have concerns about some statements in your academic writings:
- In your law review note, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court, you wrote that “extra-legal sources can help judges to determine when a departure from past practice might be necessary—philosophy might be a vehicle for legal change.” I would like to discuss this observation and your approach to the use of outside sources in interpreting statutes and the Constitution.
- In another article, Three Concepts of Dignity in Constitutional Law, you discuss how “American constitutional law has a long history of treating individual choice and autonomy as an integral and preeminent component of human worth.” I have concerns about your views on whether the Constitution confers substantive constitutional rights to dignity and whether those rights trump democratically passed laws.
- Later in Three Concepts of Dignity in Constitutional Law, you state that “[t]he Casey plurality treated a woman’s right to choose an abortion as part of her constitutionally protected liberty, because her choice implicated both dignity and autonomy,” and that the plurality opinion “linked reproductive choices with the essential nature of the individual and emphasized the importance of the freedom to make such choices without compulsion from the state.” I have questions about your analysis of the Court’s decision in Casey, as well as in Lawrence v. Texas, Gonzales v. Carhart, and other constitutional cases discussed in that article.
I look forward to meeting and discussing these issues on Wednesday, February 27, prior to the Senate Judiciary Committee’s vote on your judicial nomination.
Thank you for your willingness to be considered for this important position on one of our nation’s most prominent courts of appeals and to participate in this nomination process.
Hawley is not the only Senator who has voiced concerns regarding Neomi Rao’s nomination.
Whether Hawley’s concerns will ultimately result in a “no” vote from him on Rao’s confirmation remains to be seen. What is clear at this point is that Hawley is more adept than Cory Booker at raising points based on constitutional interpretation and judicial philosophy rather than pure identity politics.