Commentary Law and Policy

Why I Believe President Donald Trump Will Choose a Woman to Kill ‘Roe v. Wade’ (Updated)

Jessica Mason Pieklo

D.C. Circuit Court of Appeals Judge Brett Kavanaugh has emerged as an early frontrunner to fill the seat left vacant by the retirement of Anthony Kennedy. But I have a different theory.

UPDATE, June 29, 5:35 p.m.: The Associated Press reported on Friday that Trump is planning to announce his Supreme Court choice on July 9, noting that the president is considering two women.

Almost immediately after U.S. Supreme Court Justice Anthony Kennedy announced his retirement, speculation as to who would replace him began. That justice will, if conservatives get their way, be the vote that overturns Roe v. Wade once and for all.

D.C. Circuit Court of Appeals Judge Brett Kavanaugh has emerged as an early favorite. Consider him a low-rent Justice Neil Gorsuch. He’s got all the same conservative bona fides—Federalist Society priming, a history of siding for the powerful and against the powerless—but with a little less of the Gorsuch charm and charisma that mesmerized pundits during his confirmation process. Most recently, Kavanaugh wrote a chilling dissent in Garza v. Hargan, the American Civil Liberties Union case challenging the Trump administration’s policy of blocking access to abortion for undocumented minors in its custody. In that dissent, he argued that undocumented minors have no constitutional right to an abortion. Given that background, along with Trump’s clear intention to appoint judges who want to overturn Roe, it’s easy to see why Kavanaugh’s a frontrunner. 

But I think there’s a better chance that Trump nominates a woman to cast the deciding vote to overturn Roe, if and when the time comes.

This works in Trump’s favor in several ways. First, he’ll preen about how much he loves women. I can already hear him: “Look at me! I love women so much I just appointed one to replace a man at the Supreme Court! Nobody loves women more than me.” 

Second, it’ll put Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), who are both pro-choice, in the position of possibly voting against only the fifth woman ever appointed to the high court. I know Democrats, who need Collins’ and Murkowski’s help to block a Trump nominee, plan to push them from the left. It’s safe to assume they’re getting even more pressure from the right. 

And finally, what could be more perfect from an evangelical standpoint than to have a woman kill abortion rights? They’ll even call it feminism. 

So if my hypothesis is correct, who are the possible contenders to do conservatives’ bidding and upend reproductive rights? Trump has said he plans to nominate someone from this list. 

Judge Amy Coney Barrett is a top contender. Barrett recently had the dubious distinction of being confirmed to the Seventh Circuit Court of Appeals, despite never having been a judge before.

Barrett’s lack of a judicial record didn’t stop her confirmation, though. She’s a Federalist Society member, after all, and formerly clerked for late Supreme Court Justice Antonin Scalia. Before her confirmation to the Seventh Circuit, Barrett was a law professor at the University of Notre Dame, where she served until 2016 on University Faculty for Life, a campus organization open to any staff member who believes in fetal “personhood” and opposes medically assisted suicide, sometimes called “death with dignity.” In her public appearances, she has said she believes Roe v. Wade is responsible for “abortion on demand” and that Republicans are “heavily invested” in getting judges on the federal bench who would overturn the landmark U.S. Supreme Court case.

Then there is Judge Allison Eid, a Trump nominee who was recently confirmed to replace Gorsuch at the Tenth Circuit Court of Appeals. Before being confirmed, Eid served on the Colorado Supreme Court, where she split from her colleagues in a case that would have exempted religious institutions that receive state funding from paying taxes. In her academic writing, Eid has praised the Supreme Court decision in United States v. Lopez invalidating the Gun-Free School Zones Act of 1990—which prohibited gun possession in local school zones—as well as the one in United States v. Morrison. That case invalidated part of the Violence Against Women Act that allowed victims of gender-based violence to sue their perpetrators in federal court.

Eid has solid conservative credentials and would be a likely vote to overturn Roe, but I’m just not sure Republicans would pick a Coloradan to fill Kennedy’s seat so soon after doing the same for Justice Antonin Scalia’s.

Another name on Trump’s short list is Joan Larsen, who was recently confirmed to the Sixth Circuit Court of Appeals. Before that, she had been a reliably conservative vote on the Michigan Supreme Court. Larsen is another former Scalia clerk who also happens to be a big fan of executive power. She worked in the U.S. Department of Justice’s Office of Legal Counsel during the George W. Bush administration and was endorsed for the state supreme court by the anti-choice Michigan Right to Life.

Then there is Seventh Circuit Court of Appeals Judge Diane Sykes. During Trump’s first nomination process, conservatives targeted Sykes for not being, in their opinion, sufficiently pure on a desire to eradicate abortion rights. That’s because while a judge in Wisconsin, Sykes sentenced two anti-choice protesters to 60 days in jail for a clinic protest. Then, once on the federal bench, Sykes wrote the majority opinion striking down an Indiana law that attempted to defund Planned Parenthood. Those are enough marks against her in evangelicals’ eyes to make Sykes a long shot on this list.

Margaret Ryan of the U.S. Court of Appeals for the Armed Forces is the dark-horse candidate here. A federal judge since 2006, Ryan has a scant record when it comes to deciding cases involving abortion rights. But she was part of a bench that overturned a military court rape conviction, because, the court said, the jury had too many women on it so the accused’s fair trial rights were violated.

Lovely.

Ryan’s scant record deciding abortion rights cases could ultimately help her though. Judicial confirmation hearings have turned into nothing more than shadow theatre, so a nominee that is able to offer up nothing to oppose in the form of abortion-rights jurisprudence creates plenty of spaces for Ryan to say things like “I believe in respecting precedent” when questioned on how she’d vote on Roe. And if history is our guide, most Senate Democrats will do little, if anything, to push her on those statements. 

Of course, this entire theory hinges on Trump being able to get over the sexism that is among the defining features of his presidency. In the fifteen waves of judicial nominees Trump has put forward, only about 20 percent were women. Not surprisingly, they overwhelmingly trend white and male. 

But if ever there was a moment for Trump to potentially buck that trend, now is it.

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