Paul H. responds to Robby G. re: Elena K.

Check out Paul Horwitz'srecently posted thoughts, at Prawfs, responding to Robby's:

. . . Cornyn does say that a nominee's personal views on abortion (and other subjects) are irrelevant, and George doesn't disagree with that, as I understand him.  Cornyn goes on to complain, however, that Democrats have insisted that nominees "swear allegiance to certain views with regard to abortion."  In context, this seems to mean not just personal views, but legal views.  He adds that "Senators should consider judicial nominees on the basis of their qualifications and commitment to applying the law as it is written -- regardless of their personal views on abortion or Roe."

The fact that Cornyn brings in both Roe v. Wade and "the law as it is written" complicates matters in both directions.  On the one hand, a personal view on Roe is distinct from a personal view on abortion; it's arguably more a jurisprudential view than a purely moral and personal one.  Cornyn seems to suggest that questions or votes along these lines are off the table -- that whether one thinks Roe was wrongly decided (at the time, he was thinking about Republican nominees) or rightly decided is not a proper basis for a yes or no vote.  On the other hand, what are we to make of the phrase "the law as it is written?"  If Kagan says she is committed to upholding the precedents of the Court, does that make her a sound nominee under Cornyn's criteria because she is committed to applying the law as it is written?  Or is the question whether she is willing to strike down precedents that don't accord with the law as it is written in the Constitution itself -- which, on Cornyn's view, presumably doesn't include a right to abortion? . . .

Thanks to Paul and Robby for the exchange.