By Erick Erickson
There was a time when conservative judicial picks were based on a litmus test. Did the nominee support repealing Roe v. Wade. That was all it took for someone to get nominated by a right-of-center President. The result was scores of bad nominees who may have loved babies but otherwise couldnt care less what the constitution said.
The pro-life litmus test got us Anthony Kennedy David Souter and arguably even John Roberts.
It was around the time of the Roberts nomination that outside conservative scholars realized two things. First having a pro-life judge does not mean having a judge who keeps progressivism at bay. Second have a pro-life nominee makes it far easier for the left to target and pick off wayward Republican Senators.
Over time this led to an advancement in how conservatives approach judicial picks and it has arguably been a better change. Now those who vet the judges look at the whole of their writings. They look to see that the nominee is an originalist and textualist. They examine the nominees history of writings who they represented how they approached cases on which they worked and they do extensive interviews with both the potential nominee and those who know the nominee.
The approach has made it harder for progressives to attack the nominees because conservatives have an entire and entirely legitimate judicial philosophy on which to base a nomination. It also means there are no litmus test single issues that can scuttle a nomination. An originalist who is also a textualist is someone who sees Roe v. Wade as a bridge too far in jurisprudence but who is not being picked solely on the issue of abortion. These nominees are going to be stellar on economic issues social issues etc.
That leads us to Neomi Rao the Presidents nominee for the D.C. Circuit Court of Appeals to replace Brett Kavanaugh. She is a former law clerk of Clarence Thomas. She has spent years working on conservative issues and has repeatedly taken an approach to the law that puts her firmly in the originalist and textualist camp.
Some are arguing that she might be a closet pro-abortion candidate because of her past statements on Roe. But the reality is that in context she was merely affirming Supreme Court precedent which she would have to do on the Court of Appeals.
Inarguably Rao has taken positions that put her firmly in the camp for using originalism and looking at the text of the constitution. She has a long and positive record of conservatism. She is thought of highly by the conservative legal community. And she has proven herself willing to take an axe to the governments regulatory approach.
If the Senate rejects Rao because she has not affirmatively spoken out against Roe v. Wade even though the whole of her record strongly indicates she would view it as judicial overreach the Senate will be setting back the process by which conservatives have been able to get so many judges confirmed. Well be back to litmus tests that make it easier for the left to oppose our nominees.
The Senate should confirm Neomi Rao.
