Why Don’t Republicans Sound Excited That Their SCOTUS Picks Might Fulfill GOP Promises?

President Donald Trump and Senate Majority Leader Mitch McConnell (R-KY) make their way to a Senate Republican policy lunch at the US Capitol on May 15, 2018. (Photo credit: MANDEL NGAN/AFP via Getty Images)
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September 30, 2020 2:43 p.m.

As a candidate in 2016, President Trump vowed that if he got the chance to fill seats on the Supreme Court, a reversal of the monumental abortion rights decision Roe v. Wade would “happen, automatically.”

But as his third Supreme Court nominee appears headed for the bench, he’s now trying to backpedal on the promise that his justices will overturn Roe.

“There’s nothing happening there,” Trump said at Tuesday’s debate,  when former Vice President Joe Biden said that the rush to confirm Amy Coney Barrett had put Roe v. Wade on the ballot.

“You don’t know her view of Roe v. Wade. You don’t know her view,” Trump said.

Trump’s about-face is the latest example of what happens when the GOP’s promises to its social-conservative base collide with the political risks of those promises becoming a reality.

Earlier this week, Sen. Joni Ernst (R-IA), who is in a tough re-election, said at her debate that the “likelihood of Roe v. Wade being overturned is very minimal.”

That she’d play down such a possibility rather than cheer it on is remarkable, given that only nine months ago, she signed on to a Supreme Court brief explicitly asking that the justices reconsider the landmark ruling.

After years of implicitly — or, in Trump’s case, explicitly — calling for Supreme Court justices that would gut abortion rights in the United States, Republicans are now accusing Democrats of fear-mongering by pointing out that Trump’s replacement for the late Justice Ruth Bader Ginsburg gets them closer to that goal.

Their lack of confidence in how aggressively Barrett would act on the bench to dismantle abortion rights is at odds with the enthusiastic support anti-abortion groups have given to her nomination. There doesn’t seem to be any ambiguity either for Sen. Josh Hawley (R-MO), who this summer announced that he would only support Supreme Court nominees “who have explicitly acknowledged that Roe v. Wade was wrongly decided.”

Even absent an explicit acknowledgement from Barrett, Hawley has since said she meets this test. He’s pointed to a record that Hawley says “indicates that she understands Roe was really an act of judicial imperialism and wrongly decided.”

Hawley’s assessment aside, other influential members in the conservative legal movement are predicting that a Roe reversal isn’t actually on the table, contradicting years of assurances from Republicans to the religious right that electing them would put it there.

Michael McConnell, a former federal appellate judge and an extremely influential thinker in right-wing legal circles, published a Washington Post op-ed Tuesday afternoon arguing that even with Coney Barrett’s addition to the court, the chances of Roe being overturned were still extremely low.

The argument came with a political analysis that could be read as a warning directed at justices who themselves might be considering reversing the precedent of Roe:

The politics would not be kind to pro-lifers. Right now, abortion-related disputes concern marginal cases (such as late-term abortions, parental consent, sex-selective abortion and disposal of fetal remains) where public opinion is divided and the majority might even support increased restrictions. If Roe were overruled, the debate would shift to out-and-out prohibitions, where public opinion is squarely on the side of abortion rights. Republican Party primaries would feature fights to the death between purists and compromisers, and a united pro-choice Democratic Party would gain the advantage.

The former judge’s op-ed also addressed the likelihood that a Justice Coney Barrett would cast the deciding vote to kill Obamacare, which is being targeted with a GOP lawsuit that has the support of the Trump administration. McConnell said a scenario where Barrett’s appointment led to the health-care law’s dismantling was even “more far-fetched” than one where she helped the Supreme Court nix Roe.

Vulnerable GOP senators who previously voted in favor of repealing the Affordable Care Act too are deploying that argument when asked to respond to the threat that the lawsuit — and their vote in favor of her confirmation — poses to the Affordable Care Act.

“The experts are saying it’s highly unlikely they’ll overturn the ACA,” Sen. Steve Daines (R-MT) said at a debate Monday. “That’s the consensus of many legal experts.”

It also being embraced by the Senate Majority Leader Mitch McConnell himself, who in 2018 defended the Trump administration’s support of the lawsuit.

On Tuesday, McConnell mocked Democrats for raising the possibility that Trump’s nominee would agree with his DOJ’s arguments in the case.

“This mother of seven, including multiple children who were born or adopted facing pre-existing condition medical challenges, is just itching to block families like hers from accessing medical care,” McConnell said sarcastically. “What a joke.”

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