The Supreme Court justices behind the “problematic” Samuel Alito draft opinion overturning Roe v. Wade are in for some unwelcome scrutiny of their confirmation testimony.
Ed Walker (Masaccio at emptywheel) tweets, “People hate dissembling as much as they hate outright liars. Gorsuch, Kavanaugh, Barrett and the rest may feel fine about hiding their intentions, but they lied by omission in repsonse to direct questions.”
The confirmation testimony in particular of the Trump Three, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, will receive second looks. They will likely weather the blowback.
To no one’s surprise, Maine Republican Sen. Susan Collins is disappointed, as is Alaska’s Lisa Murkowski (The Guardian):
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said, while noting that the draft opinion is not final.
Republican Senator Lisa Murkowksi, who also supports abortion rights and voted in favor of Gorsuch’s and Barrett’s nominations, said the draft opinion “rocks my confidence in the court right now”.
A legal expert explains how this game is played:
“When people are nominated to the supreme court and they testify in Senate confirmation hearings, they are very careful about their language,” said Professor Katherine Franke of Columbia Law School. “Something like ‘settled law’ actually has no concrete legal meaning. What it means is that that’s a decision from the supreme court, and I acknowledge that it exists. But it doesn’t carry any kind of significance beyond that.
Nominees are playing a legalese shell game to hide their Roe leanings. To no one’s surprise, the Senate’s confirmation process has become a joke. (Washington Post):
It is not just the increasingly predictable and evasive answers of nominees that are prodding some senators to conclude that Supreme Court hearings have become empty theater. More and more, the confirmation votes themselves seem a foregone conclusion, with senators hewing to the party line and many using their allotted time to launch political broadsides rather than seek information.
“Our confirmation process for Supreme Court justices, I think, is fairly badly broken and has become not particularly revealing or relevant about what justices will do once seated,” said Sen. Christopher A. Coons (D-Del.), a member of the Senate Judiciary Committee. “I listened to several justices tell us — as candidates or as nominees — that they would have respected settled precedent. I had my reasons for skepticism given their speeches to Federalist Society gatherings or their writings. But if this becomes law, it confirms that in several cases they were not being truthful.”
For anyone needing reminding, Republicans impeached Bill Clinton for — under oath — parsing the meaning of “is.”
But once confirmed, justices are there for life with no ethics rules to constrain them. Imposing any (or expanding the court) face “potentially insurmountable logistical hurdles.”
That did not stop furious Democrats this week from renewing their ideas for a far-reaching overhaul of the Supreme Court. Some argued that lifetime tenure, designed to insulate justices from political pressure, has instead become a shield to protect them from consequences.
“Maybe there needs to be term limits for court justices,” said Sen. Jon Tester (D-Mont.). “I’ve never been somebody who’s advocated for that. But I do think it’s incredibly troubling, because these guys are supposed to be of the highest credibility and everything, and this just takes away from it.”
Restoring women’s rights in Congress, this Congress, faces similar hurdles. Again, from The Guardian:
Both Collins and Murkowski have said they support codifying Roe into law, but that proposal does not have the 60 votes necessary to overcome a Senate filibuster. Progressives are now calling on Collins and Murkowski to support a filibuster carveout to enshrine the protections of Roe into law.
“To salvage their legacy, Collins and Murkowski must join with Democratic senators to do whatever is necessary to protect Roe in federal law,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee. “No meaningful action will happen without a filibuster carveout now.”
But Collins and Murkowski have so far given no indication that they would support such a carveout. Unless they do, the court stands ready to overturn nearly 50 years of precedent and erase the national right to abortion access, even though a clear majority of the country would oppose that decision. A CNN poll released earlier this year found that 69% of Americans are against overturning Roe, while just 30% support a reversal.
Abortion appears nowhere in the Constitution. Thus, the conservative majority feels free to dismiss access to it as a right. Although vote(s), majority, etc., appear multiple places, the word democracy appears nowhere in the Constitution either. Republicans are working across the country to deny access to that as well. Settled law or not.
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