News and Commentary

HAMMER: The Wall Street Journal’s Stealth Endorsement Of Roe v. Wade Is Everything Wrong With The ‘Legal Conservative Movement’

Last week, I wrote at length about an ostensibly minor but actually quite major kerfuffle that showcases the tension at the heart of the modern “legal conservative movement.”

Sen. Josh Hawley (R-MO), the baby-faced, intellectually gifted former U.S. Supreme Court clerk and Missouri Attorney General who serves as a freshman senator from the Show-Me State, had the chutzpah to ask some questions pertaining to the faux, atextual constitutional doctrine of “substantive due process.” His questions were directed at Neomi Rao, President Trump’s nominee to replace now-Justice Brett Kavanaugh on the powerful U.S. Court of Appeals for the D.C. Circuit. Hawley’s questions were rooted at trying to dig deeper into what is, charitably, a less-than-wholly-persuasive paper trail with regard to Rao’s beliefs on culture war-centric jurisprudential issues.

It is an open secret that Rao, who currently serves as Trump’s “regulatory czar” at the Office of Information and Regulatory Affairs and is an administrative law expert who used to teach administrative law at George Mason University’s libertarian-leaning law school, was tapped by the Trump Administration for her bona fides in standing athwart the faux-constitutional agglomeration of lawless quasi-legislative power in the hands of faceless Wilsonian mandarins. The libertarian Koch brothers, who are not exactly the darlings of the social conservative Right, have longstanding financial ties to both George Mason University’s Antonin Scalia Law School and the Federalist Society itself.

For merely having the temerity to ask follow-up questions about “substantive due process” — and, by extension, abortion jurisprudence — to a top Trump Administration judicial nominee, Hawley found himself quickly under assault from the Judicial Crisis Network, a conservative group with close ties to the Federalist Society.

But just as egregiously, The Wall Street Journal’s Right-leaning editorial board decided to excoriate Hawley in not one, but two, highly charged editorials. The first editorial comically found fault with Hawley’s “lean and hungry look” and risibly criticized Hawley, who has impeccable legal credentials, for his “lack of understanding of…the law.” The second editorial shamelessly outed Carter Snead, a prominent conservative professor at Notre Dame Law School, for his having shared a recollection with Hawley about Rao’s alleged “pro-choice” policy sympathies.

The Rao kerfuffle thus exposed a deep fissure within the broader “legal conservative movement.” Libertarians were thrilled, but social conservatives were aggrieved. As I wrote last week:

Over the past five to ten years, libertarianism has been ascendant and social conservatism has been descendant within the ranks of the Federalist Society cognoscenti. The Society was founded in the early 1980s largely by social conservatives, and today many of its top internal executives and external advisers alike remain devout Catholics. But legal libertarianism has been ascendant within the Society for years now. Whereas an Antonin Scalia/Robert Bork-esque commitment to “judicial restraint” was once preached as Gospel truth on the legal Right, today libertarian groups like the Cato Institute and the Institute for Justice preach “judicial engagement” to malleable law students. Whereas the Antonin Scalia/Clarence Thomas-esque view of the faux, atextual nature of the Fifth/Fourteenth Amendment “substantive due process” doctrine was once ubiquitous on the Right, today some top Federalist Society speakers wax poeticabout the alleged glory of such a perverse doctrinal fabrication. The “anti-administrative state cabal”…is real: Many D.C.-centric legal eagles on the Right seem unduly obsessed with gutting the administrative state…

The Wall Street Journal editorial board, along with the Federalist Society and the Judicial Crisis Network, is complicit in this libertarian transmogrification of the “legal conservative movement.” This much should be obvious from The Journal’s shameless — and at times, ad hominem — attacks last week on Josh Hawley.

But it is actually worse than that. I did some research to try to discern why exactly The Journal’s editorial board decided to come out against Hawley in such scathing, uncompromising fashion. After all, the editorial board, while known for its economic conservatism and foreign policy hawkishness, does routinely come down on the side of such Right-leaning culture war issues as gun rights and conscience protection.

It turns out that The Journal’s editorial board, last July, came out in favor of Roe v. Wade — the infamous 1973 decision constitutionalizing abortion. Seriously. Here is the final paragraph of The Journal’s editorial — entitled, “The Abortion Scare Campaign” — which was published the evening of July 2, 2018, during the midst of the behind-the-scenes sweepstakes to see who Trump would tap as retiring Justice Anthony Kennedy’s Supreme Court replacement.

No one on Mr. Trump’s list of nominees will claim to want to overturn Roe — and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.

There is no way to interpret this as anything other than The Journal claiming that upholding Roe and its murderous jurisprudential progeny would amount to “proper conservative respect for the law and the reputation of the [Supreme] Court.”

The astute reader can surely deduce, by him/herself, why this is so utterly egregious on the underlying legal merits. But the point is that, in attacking Josh Hawley last week for his social conservative questioning of a libertarian judicial nominee, The Journal editorial board did so from a de facto pro-abortion perspective.

This ought to be seriously disquieting for social conservatives. With even some of our most hallowed historically Right-leaning media institutions, such as The Wall Street Journal editorial board, having capitulated to endorsing Roe, it is time for the head honchos of the “legal conservative movement” at-large to pause, take a deep breath, look squarely in the mirror, and ask some probing questions.

Who are we? Why are we here? What are we fighting for? What are our goals?

This is pretty damning stuff. For we social conservatives, it is yet another lesson that our priorities are hardly ever prioritized by the institutional gatekeepers of the broader political Right — apparently including The Wall Street Journal editorial board itself endorsing the preservation of the abominable constitutional travesty of Roe v. Wade.