#One GOP senator broke the party’s loser mentality on judicial nominations

Republicans roundly celebrated new Supreme Court Justice Amy Coney Barrett’s swearing-in this week. Yet the deeper meaning of her confirmation process was lost on most: Barrett was the first GOP nominee in a long time who was put forward explicitly and unabashedly as a pro-life religious conservative — and she garnered support from moderate Republican senators who are normally jittery about sending pro-lifers to the high court.

Two men deserve credit for the outcome. Foremost, of course, is the one who nominated her, President Trump. But some praise should also accrue to Josh Hawley, the energetic and ambitious junior senator from Missouri.

Even before the late Justice Ruth Bader Ginsburg’s seat became open, Hawley, who sits on the Senate Judiciary Committee, had set down a hard marker: The next GOP nominee had to be one who saw Roe v. Wade not as a permanent fixture of the nation’s legal landscape, but as a blight to be removed.

“The very next day after” RBG’s death, Hawley told me in an interview Tuesday, “I reached out to Mark Meadows,” the White House chief of staff. The purpose of the call: to reiterate Hawley’s non-negotiable litmus test.

Hawley hoped desperately to avert what he calls a “stealth candidate.” Think Anthony Kennedy. Or David Souter. Or, on their bad days, John Roberts and Neil Gorsuch. As nominees, such men appeared stellar on paper, with prestigious degrees, impressive clerkships and deep links to the conservative legal establishment. But at crucial moments of trial for the movement that made them Supreme, they shifted leftward.

Souter turned out to be an outright liberal. Kennedy was a heterodox libertarian, who, in 1992, upheld abortion by discerning a constitutional right to “define one’s own concept of . . . the mystery of human life.” Roberts, meanwhile, has shocked conservatives on everything from ObamaCare to state-level abortion restrictions. More recently, Gorsuch “discovered” that an anti-discrimination law enacted in the 1960s covers gender identity.

The result of this heterodox tendency is that although GOP presidents appointed have 15 of the 19 Supreme Court nominees since 1970, social and religious conservatism has steadily lost ground on everything from abortion to same-sex marriage to gender. In the face of these disappointments, Hawley says, “I felt it was important to set a marker and give a voice” to Republican “court voters,” Americans who are overwhelmingly “religious conservatives.”

His litmus test also aimed to “buck up” less conservative members of the Republican caucus. “I was worried if there’d be an enormous amount of hand-wringing in the Senate,” Hawley recalls. As recently as 2018, someone like Barrett, who was on the record as a leader of a campus pro-life group and the signer of a pro-life declaration, was considered a reach candidate; the future Justice Brett Kavanaugh was picked over her the last time around.

With Barrett, one influential conservative legal scholar told me, “everyone took it as given, in both confirmation hearings [for the Seventh Circuit and the Supreme Court], that she is pro-life.” And “she never pretended she wasn’t or tried to in any way suggest that the issue was in doubt.”

But that precisely made some Republicans uneasy. The mentality among other Judiciary Committee members, Hawley says, “was, ‘Oh, do we need to have her retract her old statements?’ So I needed to be vocal in order to provide her with cover [and to say], ‘Listen, she should not have to apologize for her record. It’s OK to nominate someone who is openly pro-life. It’s OK to nominate a judge who has been critical of Roe.’ ”

The Hawley push, I suspect, helped shatter what one might call legal Republicans’ loser mentality, one that often leads to an ideological asymmetry between left and right: Liberals are quite open about what they expect from judicial nominees and equate their own positions with all that is good and just; meanwhile, conservatives, wounded by a few too many bloody confirmation battles, prefer nominees without a clear record on matters that are of profound importance to the right.

Not anymore. The Barrett triumph may have just restored some balance to how the right goes about picking and confirming justices.

Sohrab Ahmari is the op-ed editor of The Post. Twitter: @SohrabAhmari