“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided, the day it was decided. I say again, I will vote for those nominees only and those nominees alone. And when I say explicitly acknowledged, I mean on the record before they are nominated. I do not want private assurances. I do not seek them. I do not want forecasts about future votes or future behavior, because frankly, I wouldn’t believe them. I don’t want promises of any sort. I want evidence that Supreme Court nominees will obey the Constitution and the law. I want to see in the record clear acknowledgment, that any nominee understands Roe to be the travesty that it is. And if that record is not there, then I will not support the nomination. I don’t care who does the nominating.”

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Mr. President, I came to this floor three weeks ago to talk about the Supreme Court. I come here today to revise and extend my remarks.

There are now 5 Republican-appointed justices on the Court—a majority. And in fact, Republicans have appointed 11 of the last 15 justices to the bench. But is this a “conservative” Court? More to the point, is it a constitutionalist Court? The only thing I can say for certain, surveying the results of this past term, is that the imperial judiciary lives.

This is a Court that freely rewrites congressional statutes, that has protected the worst left-wing precedents of earlier years, that in the final week of its term gave away half the state of Oklahoma!

For those who consider themselves constitutional conservatives, these decisions are a clarion call to wake up—to acknowledge what is staring us in the face. Judicial imperialism is alive and well. It marches on undaunted.

And for religious conservatives, these decisions are a call to action. Now is the time for us to be heard.

And we can begin with what we expect of our nominees to the high court. What we expect them to understand. What we expect them to affirm.

And that brings me to the case that propelled religious conservatives into activism and politics over four decades ago. The case that for religious conservatives made the Supreme Court the great issue of the day: Roe v. Wade.

Now I know that when it comes to the Supreme Court, we are not supposed to talk about Roe. That’s the open secret on the Right. It’s what religious conservatives have been told for years.

Don’t screw up the Supreme Court nomination process by raising Roe. It’s imprudent. It’s in poor taste. It will divide our coalition.

No, we’re supposed to stick to talk about process. About methods. Maybe talk about umpires. But do not talk about Roe.

Well the truth is, Roe is the reason we have a legal conservative movement to begin with. Roe is what has propelled generations of religious conservatives to vote for Republican presidents and Republican senators and Republican politicians of every rank and station — all on the promise to reverse this travesty of a decision, this moral and social injustice that in 47 years, has taken the lives of 61 million innocent unborn. 61 million.

Republicans have said, vote for us! Vote for us and we will undo this wrong. We will return this issue to the people.

And yet, all these years later, eleven Republican-appointed justices later, here we are. The nation apparently no closer to the day when the Supreme Court will renounce this outrage, renounce its imperial pretensions, and allow the good and decent people of this nation to debate and decide this matter for ourselves.

And so I say to my Republican colleagues, how long must this go on? How many more elections must there be, how many more promises must be made, how many more justices appointed, before we will expect of our nominees what our voters already expect of us? How long before we ask that our nominees to the Supreme Court of the United States recognize Roe v. Wade as the outrage that it is.

Let’s just be frank. Roe is an illegitimate decision. It has no basis in the Constitution. It has no basis in law. None of the Constitution’s specific and enumerated guarantees of privacy even begin to legitimize the taking of innocent life. None are remotely on point.

Even liberal scholars recognize this. Whole books are written on what Roe should have said.

Roe marks the point at the which the modern Supreme Court decided it had no obligation to follow the Constitution or observe the limits of its power as set forth in Article III. In the words of the late John Hart Ely, who was, I would note, a political liberal, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”

Roe is the every essence of judicial imperialism—a brazen power grab by unelected justices impose their moral views and their social vision on the nation.

Just the like another group of justices did in Plessy v. Ferguson. Just like another group of justices before that did in Dred Scott. And yes, Roe belongs with those other decisions, those other miscarriages of justice—the worst judicial decisions of all time. Dred Scott and Plessy and Roe are abusive, morally repugnant decisions that wounded the soul of the nation. They dishonored this nation’s fundamental faith in the dignity and worth of every person.

For these reasons, Roe is a no secondary issue, it is no minor thing to be pushed to the sidelines of the nomination process. Roe is central. Roe is a window onto the constitutional worldview of potential justices. It is a measure of their sense of what a justice ought to be.

Because if you believe Roe was rightly decided, you believe in judicial imperialism. There is no two ways about it. If you believe Roe was rightly decided, you believe unelected judges should be free to enact their own social views in place of the people’s. And I might just add, that the social views the justices’ seem inevitably to enact seem inevitably to reflect a certain social class, the highly educated, managerial front row of American society, the class of the faculty lounge and the C-Suite. That’s what you get when judges govern America.

Mr. President, that’s not what our Constitution provides for. And that’s not what the American people have voted for.

The people have a right to run their own government. They have a right to expect their views to prevail. To have their Constitution be obeyed. And to expect that the justices appointed to the Supreme Court—appointed, not elected—will abide by the Constitution’s terms as written by We the People.

And that is why, Mr. President, I say today, I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. I say again, I will vote for those nominees only and for those nominees alone.

And when I say explicitly acknowledged, I mean on the record, before they are nominated. I do not want private assurances, I do not seek them. I do not want forecasts about future behavior or future votes, I do not believe them. I do not want promises of any sort. I want evidence that Supreme Court nominees will obey the Constitution and the law.

I want to see in the record clear acknowledgement that any nominee understands Roe to be the travesty that it is. And if that record is not there, I will not support the nomination, I don’t care who does the nominating.

Some will say this is “yesterday’s battle.” That we should just accept Roe and move on. That today’s Supreme Court is the best we could possibly hope for. To which I say, every single life is worth fighting for. And I am not willing to accept failure. And I am not willing to accept defeat.

I take this stand because I believe it is what justice and fidelity to law requires in our time—of me, and what it requires of those who would exercise the power of judicial review.

And I believe it is what the Republican Party owes the many millions of Americans who have made this cause the reason for their vote these many years, these men and women of goodwill and faith who labor still, day in and day out, rejoicing in hope, patient in tribulation—working for that time when justice shall be done.

(Excerpt from Phillip L. Jauregui, president of Judicial Action Group. Photo from Wikimedia Commons.)

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