Did Sessions Say Abortion is Not a Problem for Judicial Candidates?

Michael O’Brien over at The Hill reports that Senator Jeff Sessions (R, Ala.) told Fox News recently that he had no litmus test on abortion for judicial candidates and that a judge that had pro-abortion views could get his vote for confirmation.

This might alarm anyone that is vehemently anti-abortion. It should also alarm all those conservatives that pushed for Senator Sessions to be made the ranking member of the Senate Judiciary Committee. …but hold your outrage for just a minute. Let’s more closely look at what he said.

“I don’t believe in a litmus test. I believe a judge can have a different view on abortion than I have, and still receive my vote.”

On it’s face, this is a prudent position. After all, when evaluating a judge it is foolish to say beforehand that any one issue will prevent that candidate from taking the bench. One never knows what one will find when evaluating a candidate. Besides, it has long been a standard to eschew litmus tests in judicial candidates. After all, isn’t that what we complain about from the extreme left, that they have litmus tests? Additionally, even if you do have a personal idea that being pro-abortion violates your litmus test, it is not a good idea to say so outloud. Still, also on its face, we might find reason to be worried if that was all Sessions said on the matter. But even if we decide to jettison the historical non-litmus stance and find something to worry about in Sessions’ statement, we can find solace in his follow up point…

“I would like to know how they analyze the logic behind Roe vs. Wade. If they are faithful to the law, then we can get along pretty well.”

Think about what Sessions just said there. He just said that if a candidate follows logic and Constitutional originalism in considering the law, then such a candidate and the Senator can “get along pretty well.” So, what does that mean? In my opinion, this was Sessions’ cagey way of saying that if a judge follows the law properly said judge cannot hep but realize that Roe v Wade is bad law and should be reversed. So, that means that even if a judge is personally pro-choice, but follows the logic of the law, he’ll be anti-Roe v Wade regardless of his personal convictions. Sessions was saying that this is the sort of judge he could get along with “pretty well.” I think that Sessions brilliantly set himself up as Mr. “reasonable” as far as his left-wing opponents are concerned while still sending the signal to us that he does, indeed, have a litmus test for a judge. It is a test that holds a judge to strict originalism and logic and not personal crusades. In essence, Sessions just told us that he will vote thumbs down on any judge that adjudicates with his feelings and not the logic of the law. In essence, Sessions hinted that Obama’s “empathetic” candidate won’t get much empathy from him. Let us hope I am right. Because if I am not, we just lost another one of our leaders to the mushy middle.

Warner Todd Huston——Bio and Archives

Warner Todd Huston’s thoughtful commentary, sometimes irreverent often historically based, is featured on many websites such as Breitbart.com, among many, many others. He has also written for several history magazines, has appeared on numerous TV and radio shows.

He is also the owner and operator of Publius’ Forum.