The James Wilson Foundation on Natural Rights and the American Founding

“We Need A Roe Litmus Test If GOP Judges Keep Scrapping The Constitution”: Gunnar Gundersen in The Federalist

by James Wilson Institute on September 10, 2020
Courts, Politics

In this article, Gunnar Gundersen argues that a litmus test is needed for Supreme Court nominees to gauge their opposition to the decision found by the Supreme Court in Roe v. Wade and further established by Planned Parenthood v Casey. According to Gundersen, pro-life efforts are reaching a point of desperation as Republican-appointed justice after Republican-appointed justice fails to vote to overturn the Roe and Casey decisions. The promises of originalism and the calls to wait are beginning to sound reminiscent of the promises and calls made by Chavistas in Venezuela. Though not a perfect solution, a litmus test on this topic would go a long way to reveal a nominee’s constitutional philosophy, allowing Senators to judge the nominee’s knowledge and understanding of precedent, as well as the insightfulness of their approach to the Constitution. Additionally, it would shift the focus of nominations from the nominee’s school affiliations to the nominee’s record of advancing conservative jurisprudence, while also encouraging greater diversity on the Supreme Court.

Some excerpts from this article:

After nearly 50 years of pro-life efforts, many are asking what we are getting for broadly supporting Republicans rather than prioritizing judicial appointments overturn Roe, and more specifically Casey, which moved Roe’s goalposts and established the “undue burden” standard for so-called women’s rights. The answer is a series of judges that continue to strengthen Roe and its progeny.

As the walls apparently close in on a new presidential cycle, a desperate pro-life movement is being asked to believe what is needed is more time. At what point do we realize that despite some political victories, the architects of our current Supreme Court strategy are the judicial Chavistas, continually telling us filet mignon and high-quality health care are just around the corner as we settle into a life of dumpster-diving and substandard Cuban medical clinics?

Finally, requiring examples of how a nominee approaches the Constitution is more insightful than requiring “originalist” thinking, since originalism comes in almost as many flavors as there are political philosophies. Indeed, the current promise of appointing “originalists” is as meaningless as promising to appoint a lawyer in good standing.

The current focus on the “least objectionable” candidate tends to prioritize pedigree over solid reasoning. This is of growing concern as it becomes clear that those schools that have typically been considered the best are also the most ideologically homogenous and farthest left. The fate of our national jurisprudence should not belong to U.S. News and World Report nor the Ivy League alumni network.

Read the complete article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790