A top Justice Department official under George W. Bush believes Neil Gorsuch will vote to overturn the landmark Roe vs. Wade ruling on abortion if he is appointed to replace Antonin Scalia on the U.S. Supreme Court.
"The scales are probably tilted toward believing that he would overturn Roe v. Wade," John Yoo, a UC Berkeley law professor told Newsmax TV's "The Steve Malzberg Show" on Tuesday. "In fact, I would be very surprised if he upheld Roe the way [Justice Anthony] Kennedy has. Be shocked, actually."
Yoo focused on Gorsuch's remarks about "precedent," made Tuesday during the Supreme Court candidate's second day of grilling in confirmation hearings before by the Senate Judiciary Committee.
"Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court, it has been reaffirmed . . . and all of the other factors that go into analyzing precedent have to be considered," Gorsuch said to Sen. Chuck Grassley, R-Iowa. "A good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other."
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"It's interesting what he said about precedent. He was very careful, he said precedent is like decisions the families make. It's a kind of collective wisdom," Yoo told Steve Malzberg.
"But what he didn't say is that it should be blindly followed and that's very important because a lower court judge does have to blindly follow Supreme Court precedent. That's in fact what Gorsuch has done as a lower court judge. Even when he's just said quite clearly he disagreed with it.
"But once he's on the Supreme Court, you're right, he is not bound to follow precedent if he thinks that the precedent is wrong. And so I think that he's been very careful to avoid saying before the senators one way or the other how he thinks about Roe v. Wade."
Yoo said having read Gorsuch's past court decisions and essays, "I think he would be opposed to Roe v. Wade, although he's not decided because he has written this book about euthanasia, and his principle from that book is that all human life has to be respected."
Does Yoo personally think Roe vs. Wade, should and will be overturned?
"I got to say, I'm one of these weird birds who I don't mind abortion as a policy matter, but I don't think the Constitution requires it nationwide," he said. "I think each state should decide for itself."
Roe vs. Wade concerns a 1973 landmark decision by the Supreme Court, which recognized the right of women to have abortions.
Yoo is author of "Point of Attack: Preventive War, International Law, and Global Welfare," published by Oxford University Press.