In an essay for Public Discourse, Prof. Arkes responds to Sen. Hawley’s recent declaration that he will no longer vote to approve any judicial nominee who could not get clear on the reasoning in Roe v. Wade and affirm its wrongness. Prof. Arkes advises Hawley that employing a jujitsu of sorts, forcing Democratic senators to clarify their position on abortion and defend it, would prove more effective. As the Democratic party has shifted further into an absolute affirmation of Abortion, the American people are not aware of its radical stance. Republicans should ask nominees to the Supreme Court to explain how they themselves understand the holding in Roe v. Wade, for there has been much confusion on that point among lawyers, let alone members of the public. With the answers too embarrassing to deliver out loud, Prof. Arkes says we may discover that the Democrats suddenly lose their appetite for this issue in the hearings and moderate Republicans may grow emboldened. Shifting the focus in discussions over Abortion from one of the rights of the states being removed back to whether or not we are depriving an innocent being of its life may help Republicans recover their better selves.
Some excerpts from the article:
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.
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?
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.