Senator Josh Hawley, R-MO, is a strong defender of the rights of the unborn. But in his zeal to protect the innocent he may be encouraging the biased judicial activism that conservatives decry as legislating from the bench, not deciding cases on their constitutionality.

Said Hawley to the press, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated… 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 [predictions.] 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.”

His spokesman added, “This last term at the Supreme Court has shown the Court is still stocked with judicial imperialists. For years now, well before this President, the establishment promised religious conservatives a Supreme Court that would uphold the Constitution and protect their rights, and they’ve failed to deliver. It’s time to get serious about scrutinizing people’s records.”

Conservatives have good reason to feel slighted. Former Justice Anthony Kennedy, thought to be a conservative or swing vote but who shifted left, gives proof to this concern. Today the Right is upset with Bush-appointed Supreme Court Chief Justice John Roberts. A gimlet eye is even being cast toward Trump appointed Justice Neil Gorsuch. 

But Judicial Crisis Network President Carrie Severino, a former clerk for Justice Clarence Thomas and a noted conservative, has another view, “I understand Senator Hawley’s frustration, but his test would have excluded Justice Thomas and Justice Alito while allowing Justice Souter and Justice Kennedy.”

Mike Davis, the founder of the conservative Article III Project, backs up Severino, “Parties before the court must get a fair shake — and not have their case decision precooked in a smoke-filled room in the Senate. If conservatives legitimize the judicial-activism game, we will lose that game much more often than not — as many of these liberal results are oftentimes politically popular. It’s certainly fair game for senators to question judicial nominees about their past decisions, speeches, and writings. And it’s also fair game for senators to ask judicial nominees how they’ll go about deciding future cases — so long as they don’t commit to the ultimate outcome of a case.” Davis also correctly noted that pro-choice and vital swing vote Senators Susan Collins, R-ME, and Lisa Murkowski, R-AK, would probably not vote to confirm a nominee that has openly sided against Roe v. Wade. 

Hawley’s spox retorts, “We’ve all heard that argument for years. It’s an excuse to nominate judges who don’t have guts and who are secret judicial imperialists. If we cannot nominate someone to the Supreme Court who will acknowledge Roe v. Wade was wrongly decided as a matter of constitutional law, then the conservative movement has not accomplished much.”

It seems a stretch to label someone a “judicial imperialist” who seeks to interpret the Constitution case by case, not bellow their opinion before ever having seen a specific case. Thus hopefully the Senate will not follow the Senator’s well-intentioned and heartfelt counsel, no matter how good it feels. Supreme Court justices should be neutral umpires only seeking the guidance of the Constitution, not players for any ideological team. If they had been so in 1973, Roe would never have become law in the first place.