Anne Lofaso, WVU Law Professor

MORGANTOWN, W.Va. — There are still a lot of unknown variables — like who the President will nominate — but one WVU Law Professor thinks the nation’s chief executive could wind up being forced to ‘moderate’ his selection.

There’s a lot to unpack in that sentence alone, but Anne Lofaso, the Arthur B. Hodges Professor of Law at WVU College of Law, said President Trump has a complicated choice to make.

On the campaign trail, then-candidate Trump vowed to appoint pro-life justices who could aid in the fight to limit or outright restrict abortion practices in the United States.

His short-list, reportedly down to three potential jurists, includes at least one judge who is seen as willing to aid in that fight.

If this were a straightforward nomination, Lofaso said President Trump could nominate whomever he pleases without fear of consequences. Instead, Lofaso said the President will need to take a look at the political playing field. His party, the GOP, owns a narrow 51-49 majority in the U.S. Senate — the legislative body responsible for confirming Supreme Court Justices. Assuming that Senate Leader Mitch McConnell (R-KY) again permits the appointment of a judge using just 51 votes, the path to a successful nomination is potentially much easier than it has been for past Presidents.

There is another hurdle, though: Sen. John McCain (R-AZ) is expected to be absent due to health reasons, while Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) are both pro-choice Republicans. Thus, Lofaso said the choice is for the President to choose a more moderate candidate who could ease the fears of those two influential swing voters plus a number of Democrats.

“He might consider that itself as a loss, and so he’d rather go down fighting and get punched out,” Lofaso said. “And then he can say how the Democrats are obstructionists.”

Though not a regular occurrence, two of the previous three Republican U.S. President’s didn’t see their top choice appointed to the nation’s highest court during at least one of their nominating opportunities.

NPR reported last week that the President’s list is narrowed to D.C. Circuit U.S. Court of Appeals Judge Brett Kavanaugh, 6th Circuit Court of Appeals Judge Raymond M. Kethledge, and 7th Circuit Court of Appeals Judge Amy Coney Barrett. Judge Thomas Hardiman, the runner-up to Justice Neil Gorsuch, is seen as fourth on the list, but not necessarily out of the running yet, according to NPR.

“Picking someone like (Barrett) would be like (the President) saying, ‘Go ahead, take your best shot at me. But as soon as you put down your bat, I’m going to swing your bat right back at you, and I’m going to win.'”

Barrett, 46, clerked for the late Justice Antonin Scalia, but has only been a federal judge for about one year. She is a former law professor at the University of Notre Dame. Three Democrats voted to confirm Barrett last year — Joe Donnelly of Indiana, former Vice Presidential nominee Tim Kaine of Virginia, and West Virginia’s own Joe Manchin.

Additionally, Sen. Doug Jones (D-AL) has said he is open to voting ‘yes’ to President Trump’s nominee, claiming he would not be a ‘rubber stamp’ in either direction.

But this time around, with the future of Roe v. Wade potentially on the line, Lofaso said it isn’t clear Manchin would give a hypothetical nominee Barrett a ‘yes’ vote.

“Constitutionally speaking, someone who is more likely to overturn Obamacare is also more likely to overturn Roe v. Wade,” Lofaso said. “(Manchin) could actually, in my view, very easily stay away from this issue and still stick with the Democrats.”

“I think she’s probably the strongest pro-life voice of those three. So, if (President Trump) ends up nominating her, I think he’s looking for a fight.”

Lofaso believes another aspect of this is practicality: how much would actually change if Roe v. Wade was revisited by the U.S. Supreme Court.

“Practically speaking, in state’s where you can readily get an abortion, a state like New York, you are still going to be able to get an abortion,” she said. “In state’s where you can’t get an abortion anyway, it’s now going to be unlawful to get an abortion.”

She did cede, however, that state’s would have the ability to criminalize abortion in the event that Roe v. Wade were ever overturned, which brings up a number of complicated questions. It’s why Lofaso believes the terms “pro-life” and “pro-choice” offer up too simplistic a viewpoint on the complex practice of abortion.

“I think the majority of the people in the country are actually pro-abortion in some sense,” she said. “I think most of us in this country actually see that this is a pretty complicated question. It is really the more extreme that are saying it has to be one way or the other.”

In addition to questions of popular will, Lofaso said there are questions of what constitutes the creation of life, questions over when a fetus — who she notes is not a citizen — become viable and not forced to rely on a mother’s womb to live, questions over whether the government can regulate a medical practice such as abortion — particularly one that so heavily impacts women.

These implications are expected to be heavily scrutinized once the President announces his selection Monday night.

What happens next, Lofaso said, is not written in stone; but a major turning point in American politics could be on the horizon.

“If Roe V. Wade is overturned, then you are no longer galvanizing the Right. And now, for many women and male allies, I think what would happen is you would galvanize the Left, and you would radicalize many women, and many women would start to vote Democrat because it would be their only issue.”

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