By U.S. Senator Josh Hawley
See the original op-ed in the Federalist.
This week I’ve drawn fire from various quarters of the Washington establishment for daring to ask a simple question: whether a judicial nominee will follow what the Constitution says, not what they want it to say. You wouldn’t think that would be controversial but, well, it’s Washington. And I’ve got some news for Washington: I’m going to keep asking.
President Trump was elected thanks to his pledge to put judges on the bench who respect life and won’t make stuff up in the Constitution. He has kept his word. I made the same commitment to the people of Missouri, and I’m going to keep my word too. That means vetting judicial nominees carefully to ensure they are qualified and ready to sit on the most important courts of our country.
I’ve been a judicial clerk at the U.S. Supreme Court, litigated there and in many other courts, and proudly served as Missouri’s attorney general. I know what a strong constitutional judge should do and say, and I’m not going to let other people, and certainly not the Washington establishment, do my thinking for me.
So I will be asking every appellate court nominee where he or she stands on the Constitution, and especially on the doctrine called “substantive due process.” That strange phrase stands for a dangerous doctrine in constitutional law that has allowed power-hungry judges to invent new “implied rights” out of thin air and usurp the will of We the People. It’s the doctrine used to justify Roe v. Wade and all manner of other judicial adventurism.
I want to know where nominees stand on this made-up doctrine. And I’m not going to vote for any nominee who would expand it. Lower-court judges are of course bound by Supreme Court precedents, including the bad ones. They don’t have any choice. But anybody willing to expand substantive due process won’t have my support for the federal bench.
As someone who believes deeply in the right to life and the equal dignity of every person, including the unborn, confirming judges who will resist the siren song of judicial lawmaking is especially important. All too often, lower courts have used substantive due process to stop states and local governments from protecting the unborn, even when Supreme Court case law would allow it.
This is wrong. This is activism. We need judges who will protect states’ ability to look out for the unborn to the maximum extent possible under current Supreme Court precedents. That is part and parcel of being a rule of law judge. Americans who cherish every fundamental freedom in our nation should agree.
The people of Missouri sent me here to ask tough questions, challenge conventional wisdom, and fight for what our state believes. We’ve been burned too often. For every Justice Clarence Thomas, there has been a Justice David Souter or Harry Blackmun. And every time, D.C. insiders have said, “Trust us.”
Missouri is called the Show-Me State because we Missourians are famous for wanting the facts. When the D.C. insiders say “trust us,” my response is always going to be: “Show me.” Show me how this nominee will uphold the Constitution. That’s my job, and that’s what I will do.
Josh Hawley is a U.S. senator from Missouri and former Missouri attorney general.