Feminists Can and Must Demand a Supreme Court Justice Who Answers on Roe

Donald Trump will soon announce his nominee to fill the Supreme Court seat Justice Kennedy will vacate later this month—and women’s rights are at stake.

Abortion rights activists outside of the Supreme Court. (Victoria Pickering / Creative Commons)

Trump ran on a platform of outlawing abortion and even once said women who obtain them should be “punished,” and his nominee will come from a list hand-picked by the anti-feminist, right-wing Federalist Society. Trump himself has said that he wouldn’t be asking his nominee about Roe—but his commitment to appointing anti-abortion and otherwise anti-woman judges to the bench at every level of the judiciary is apparent. It is not Trump and his associates or the Republican party members in the Senate who need Justices to disclose and be accountable to their views in hearings—it is the Americans impacted by their regressive interpretations of the law.

Trump has already successfully appointed one far-right Justice: Neil Gorsuch last year assumed the vacated seat of the late Antonin Scalia, which was left open due to Senate Majority Leader Mitch McConnell’s outright refusal for an entire year to hold hearings on then-President Barack Obama’s nominee, Merick Garland. Gorsuch, who had a record of ruling in favor of corporations and against women’s rights, has already proven to be a staunchly conservative vote on the Court. In hearings, he refused to commit to a stance on Roe or even on Brown v. Board of Education.

A GOP-fostered lack of transparency in Supreme Court candidates has now become the norm—even as the rights of women, people of color and LGBT communities hang in the balance. Linda Greenhouse, winner of the Pulitzer Prize in Journalism and lecturer at Yale Law School, argued last week in the New York Times that Justice Gorsuch’s refusal to disclose his stance on past Supreme Court rulings was abnormal—and implores Democrats and Republicans to challenge rhetoric that inquiries about the views of Supreme Court nominees are somehow invasive.

With the future of the court—indeed, of the Constitution as we know it—now at stake, it’s urgent for the senators and the public to understand that Justice Gorsuch’s stonewalling of the Judiciary Committee was not consistent with historical practice and should not be viewed as a norm. Rather, it should be called out for what it was: a derogation of the democratic principle at the heart of Article III of the Constitution, the judiciary article that places the confirmation of life-tenured judicial nominees in the hands of the people’s representatives. Until recently, the modern confirmation process has assumed at least a modicum of substantive engagement between those representatives and the nominee.

Justice Gorsuch and his senatorial enablers based the claim that it would somehow be unethical for him to discuss his own views about the Constitution on something he and others referred to as the “Ginsburg rule.” Supposedly, during her 1993 confirmation hearing, then-Judge Ruth Bader Ginsburg refused to give meaningful answers to the senators’ questions. That is a myth. As the current documentary film “RBG” reminds us, she fully embraced the constitutional right to abortion. She was confirmed by a vote of 96 to 3.

Not only is there no “Ginsburg rule,” but the two Republican nominees who came after her, John G. Roberts Jr. and Samuel A. Alito, were both more forthcoming than Justice Gorsuch. While both fenced with the senators about Roe v. Wade and refused to be pinned down, they each accepted the holding in Griswold v. Connecticut, the crucial pre-Roe decision recognizing a right to privacy that gave married couples the constitutional right to contraception. “I feel comfortable commenting on Griswold and the result in Griswold,” then-Judge Roberts told Senator Herb Kohl, a Wisconsin Democrat, during his 2005 hearing, “because that does not appear to me to be an area that is going to come before the court again.” (Let’s hope that’s still the case.)

You can read the full piece here.

About

Anna Lipton is a former editorial intern at Ms. and a student at Occidental College majoring in Sociology with a minor in Gender, Women and Sexuality Studies. She enjoys watching reality TV and eating guac, usually but not always together.