Neil Gorsuch and Roe v. Wade

On Tuesday during the 2nd day of his confirmation hearings Judge Neil Gorsuch was quizzed on Roe v. Wade. He affirmed the 1973 Supreme Court decision as a precedent of the Supreme Court while affirming the value that members of the judiciary hold dear – stare decisis (latin for “let the decision stand”).

Gorsuch calls Roe v. Wade “a precedent of the United States Supreme Court” https://t.co/SsXz6sXI7V

— NBC News (@NBCNews) March 21, 2017

In the exchange above U.S. Senator Chuck Grassley (R-IA), chairman of the Senate Judiciary Committee, asked Gorsuch if Roe v. Wade was correctly decided. Gorsuch replied:

Senator, again I would tell you that Roe v Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed, the reliance interests considerations are important there, and all the other factors that go into analyzing precedent have to be considered. It is a precedent of the United States Supreme Court and was reaffirmed by Casey in 1992, and in several other cases. So a good judge will consider it as precedent of the United States Supreme Court worthy of treatment as precedent like any other.

So he avoided the question. While he affirmed it as precedent, he didn’t say it was correctly decided. He is walking a fine line here. Obviously I disagree with Roe v. Wade and I believe it was poorly decided I can’t deny that it is a precedent of the Supreme Court. It is going to be very difficult to overturn and even if Gorsuch’s confirmation it is unlikely to be overturned as we are looking, at best, only four justices willing to do that.

Ed Morrisey reviewed Gorsuch’s 2009 book on assisted suicide, The Future of Assisted Suicide and Euthanasia, Morrisey particularly focused on chapter 9 and 10 in the book:

In ch. 9, Gorsuch gets to his own arguments on the intrinsic value of human life, and its correlation to equal treatment under the law.

— Ed Morrissey (@EdMorrissey) January 21, 2017

"To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends" Gorsuch

— Ed Morrissey (@EdMorrissey) January 21, 2017

More Gorsuch, ch 9 of Future of Assisted Suicides and Euthanasia: Excellent takedown of Peter Singer's utilitarianism. Must read.

— Ed Morrissey (@EdMorrissey) January 21, 2017

.@bbmoe However, ch 10 leaves little doubt about how Gorsuch would see laws such as the Born Alive Infant Protection Act. Compelling.

— Ed Morrissey (@EdMorrissey) January 21, 2017

In fact, Catholics would be very, very comfortable (and familiar) with Gorsuch's reasoning on sanctity-of-life basis for equal treatment.

— Ed Morrissey (@EdMorrissey) January 21, 2017

It’s hard to see someone who has this particular view on assisted suicide and the sanctity of life not at least being willing to consider overturning Roe v. Wade. He’s just not telegraphing that in his confirmation hearing which is wise unless he wants to get “Borked.”

Then there is this exchange he had with U.S. Senator Linsey Graham (R-SC).

Graham asked Gorsuch if he had been asked by President Trump during his interview if he would overturn Roe v. Wade, and if he had asked what would he have done.

Gorsuch replied, “”No. I would have walked out the door. That’s not what judges do. They don’t do it at that end of Pennsylvania Avenue (the White House) and they shouldn’t do it at this end either (Congress).”

Two words… judicial independence. If Trump asked and Gorsuch said yes then he would be admitting he got the nomination for the promise of how he would decide a case.

I am not a legal scholar, but I can see how that would be deemed unethical. He can’t promise how he would rule on cases that are not before him. Look he could make his position on Roe v. Wade be absolutely clear like Judge William Pryor did when he said Roe v. Wade was the “worst abomination in the history of constitutional law”?

He could, but remember he has to win a supermajority which means some Democrats and moderate Republicans. I doubt Pryor could be confirmed in this current environment.

Numerous conservatives who are familiar with Gorsuch praised his nomination, and many of these conservatives did not necessarily back President Trump. Did they get it wrong?

I doubt it. We do need to understand the tightrope he is walking. Is there a chance he could disappoint us? Certainly, but frankly if Gorsuch ends up having difficulty being confirmed I don’t see how someone who is more forthcoming in their views of Roe v. Wade could win confirmation either.