Six women from the Senate Democratic caucus demanded an answer from John Roberts as to whether he would overturn Roe v. Wade if such a case presented itself, and committed to opposing his nomination if he answered yes or refused to answer. Barbara Boxer led the press conference and said she would find it “impossible” to vote for Roberts:
A group of female Democratic senators said yesterday that they will vote against Supreme Court nominee John G. Roberts Jr. unless he vows to uphold abortion rights. …
“Thousands of women a year died in back alleys,” Sen. Barbara Boxer, California Democrat, said of the days before Roe v. Wade, the 1973 Supreme Court decision that established abortion rights. “For more than 20 years, Sandra Day O’Connor has been an important vote in upholding Roe v. Wade,” she said. “Will Judge Roberts be that same important voice?”
Senators Patty Murray, Barbara Mikulski, Debbie Stabenow, Maria Cantwell, and interestingly Hillary Clinton all joined Boxer for this statement. None would answer when asked if they could support Roberts even if he even said that Roe was wrongly decided. Mikulski said that the women cared about more than just abortion rights, but clearly this statement meant to deliver the message that without a clear statement of support for Roe, Roberts would not get their votes.
Cantwell did not even bother to dispute the notion that they wanted a litmus test that demanded a prior agreement to prejudge cases towards particular outcomes. She told reporters that it might well be considered a litmus test, but that “over 60 percent of the American public believe that it is the job and role of the Senate to advise and consent on nominees, and it is very appropriate to ask nominees about their judicial philosophy.”
Asking about judicial philosophy is certainly appropriate, but demanding a loyalty oath to a particular court decision is not only inappropriate but entirely odious. First, it violates the rules of ethics for judges to preconceive how they will rule on cases before they are heard. Second, it creates an undue political pressure from the legislature onto the judiciary, which supposedly is independent and co-equal. Third, as Cantwell obviously doesn’t know, the only oath that a Supreme Court justice takes is to the Constitution itself, not the majority decisions that prior courts have delivered.
Besides, only sixty percent of the American people feel it is appropriate for the Senate to provide advice and consent on executive nominations? That should be 100%, as that is clearly a delineated responsibility in the Constitution. The lack of unanimous mandate on this point should serve as a warning signal to the Senate that they have undermined their credibility, largely through overt political demands of judicial nominees such as attempted by the women at this press conference.
Elections have consequences. The American people elected a Republican president and a Republican Senate that campaigned openly and strenuously on judicial nominations. Clearly they want to see more conservative jurists on the federal bench. The Senate minority needs to quit obstructing the will of the people and allow the President to appoint and confirm qualified jurists to the bench. Roberts’ politics are not an appropriate subject for debate.