“Abortion and the Brett Kavanaugh Hearings: A Plan for Senate Republicans” Professor Hadley Arkes in National Review

With the upcoming hearings over Supreme Court Nominee Brett Kavanaugh,  Prof. Hadley Arkes makes the case for a different Republican strategy at National Review Online with his latest essay, “Abortion and the Brett Kavanaugh Hearings: A Plan for Senate Republicans.”

Prof. Arkes begins by reviewing the traditional Republican playbook: promising to have the nominee keep his head down, taking the pummeling over the issue of abortion, but not provoking any arguments. He notes that although the slogans of the opposition may be quite open to challenge, that is not the work of the nominee; his task is to show himself to have a command of the law. Moreover, he must take care so as to not scare the horses—or Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). That is a counsel of prudence not to be discounted. After acknowledging this, however, Prof. Arkes moves to note that by even the gentlest of moves the Republican senators can make it quite uncomfortable for the Democrats even to raise the issue of abortion—and perhaps put an end to the antics that have poisoned these hearings since the hearings over Robert Bork.

Excerpts from the piece :

“When the Court established, in 1973, a constitutional right to abortion, it suddenly made the issue of abortion the business of the federal government, and a poisonous part then of our national politics. President Trump remarked, on introducing his nominee, that just beneath the gravity of making decisions on peace and war, the appointment of a justice to the Supreme Court was now the most consequential decision that a president can make. But that should not be true. It has come closer to the truth since the Court began extending its reach and remaking the culture, with decisions on pornography, contraception, abortion, homosexuality, and same-sex marriage.

“Surely, the coming hearings cannot be unaffected by this striking new position of the Democrats. If the nominee is asked, for the umpteenth time, whether he regards Roe v. Wade as settled law, he can point out now that, in the judgment of President Obama and virtually all Democrats in the House, the right to abortion, established in Roe, extends beyond the pregnancy and entails nothing less than the right to kill a child born alive. If the nominee has an edge of daring, he might invite the inquiring senator to say whether he shares that understanding of Roe held by President Obama and Democrats in the House.

“The Republicans would be free to keep wondering aloud as to where their Democratic colleagues on the panel stand on that question, for, after all, they are about to vote on that bill for the Survivors of Abortion.  The Republicans could twit the Democrats over the asymmetry here: The Democrats want Judge Kavanagh to pronounce on cases that have not yet appeared, and yet they will not reveal their own understanding of Roe v. Wade by saying how they will vote on this bill slated to come before them this fall for a vote. They ask how Judge Kavanaugh stands on Roe v. Wade, and yet they will not say how they will vote on a measure that calls into serious question the very meaning of Roe, the case they treat now in these hearings as iconic.

“No more than 24–25 percent of the public, in surveys over the years, have shown a willingness to accept abortion throughout the entire length of the pregnancy, for any reason at all. What most people in the public still do not know is that the “right to abortion” established in Roe, and its companion case of Doe v Bolton, did indeed extend through the entire length of the pregnancy — and it did not find its limit, as we have learned, even when the child came out alive. That is not a position that Democrats will be ready to defend in front of the television cameras and a national audience. The Republicans on the Judiciary Committee, and their nominee, have it in their hands now to dispel that fog of 45 years with the gentlest of moves. The Republicans can challenge their Democratic colleagues to say whether they would stand with President Obama and the Democrats: Would they now truly defend a right to abortion that extends beyond the pregnancy itself? If the Democrats discover now that, whenever they raise the question of Roe v. Wade, they will be compelled to defend the right to kill even the child who survives, we will find that the Democrats, after 45 years, have finally lost their appetite for this issue.”

Read the whole essay here.