Northwest Arkansas Democrat-Gazette
Justices’ stances change during hearing
Abortion case brings Supreme Court confirmation process into question
WASHINGTON — During his confirmation to the U.S. Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “settled law,” calling the court cases affirming it “precedent on precedent” that could not be casually overturned.
Amy Coney Barrett told senators during her confirmation hearing that laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy,” she said.
But during this week’s landmark Supreme Court hearing over a Mississippi law that could curtail if not outright end a woman’s right to abortion, the two newest justices struck a markedly different tone, drawing lines of questioning widely viewed as part of the court’s willingness to dismantle decades-old decisions on access to abortion services.
The disconnect is raising fresh questions about the substance, purpose and theater of the Senate’s confirmation process that some say is badly broken. And it’s creating hard politics for Collins and another Senate Republican who supports abortion rights, Sen. Lisa Murkowski of Alaska, as the nation confronts the potential unraveling of the law.
“I support Roe,” Collins said as she ducked into an elevator shortly after Wednesday’s arguments at the court. The Maine Republican voted to confirm Kavanaugh but opposed Barrett’s nomination as too close to the 2020 presidential election.
Murkowski declined a Capitol hallway interview Thursday and has not commented. She opposed Kavanaugh and supported Barrett, both nominees among the most narrowly confirmed in the split Senate.
The court’s ruling on the Mississippi case may not be known until June, but the arguments are reviving concerns that the judicial branch, like the nation’s other civic institutions, is becoming deeply politicized, and that Congress — specifically the Senate — must do better in its constitutional role to advise and consent on presidential nominees.
“It’s not like the senators have been naive and have trusted too much,” said Neil Siegel, a law professor at Duke University who has served as a special counsel to Senate Democrats, including when Joe Biden was a senator. “I think the problem is primarily that we’re deeply polarized, and the Constitution makes nomination and confirmation of federal judges, including justices, a political process.”
Confirmation hearings before the Senate Judiciary Committee are intense affairs, hourslong sessions that typically drag on for days as one senator after another grills the president’s nominees over their approach to the law.
Kavanaugh’s hearing in 2018 exploded amid stunning allegations that he had sexually assaulted Christine Blasey Ford when they were teenagers at a house party decades ago, claims he vehemently denied.
The abortion debates have been front and center at confirmation hearings, but senators snapped to focus as Republican President Donald Trump nominated three conservative justices during his term, potentially tipping the nine-member court away from centrists and liberals.
Suddenly what had been long debates over the legal precedents set by the landmark cases Roe v. Wade and Planned Parenthood v. Casey became very real-life questions for American women as Republicans reached for the long-sought goal of rolling back abortion access.
Kavanaugh repeatedly told the senators under grilling from Democrats and Republicans that women’s right to an abortion has been affirmed.
“The Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times,” he told Sen. Lindsey Graham, R-S.C.
To Sen. Dianne Feinstein, D-Calif., Kavanaugh stressed “the importance of the precedent” under the previous court rulings and a “woman has a constitutional right to obtain an abortion before viability,” referring to the 24 weeks of pregnancy now in question under the Mississippi law, which would lower the threshold to 15 weeks.
He won over Collins, who is not on the panel, after his assurances.
Yet during this week’s court hearing Kavanaugh read from a long list of court cases that have overturned precedents and questioned why the court couldn’t now do the same with abortion.
Kavanaugh said the abortion debate is “hard,” and perhaps the court should throw it to the states to decide — essentially ending the federal protection.
Senators said the justices could simply be submitting a line of questioning, forcing the lawyers for the state and the federal government to respond, rather than reflecting their own reading of the law.
But Sen. Amy Klobuchar, D-Minn., who had intense exchanges with Kavanaugh and Coney Barrett during the confirmation battles — and voted against both — said what she heard from the court was about what she expected.
“I’m not one bit surprised,” Klobuchar said.
Barrett had told senators that Roe v. Wade did not fall in the category of a “super-precedent,” described by legal scholars as cases that are so settled there are no calls to revisit them.
Yet as a conservative Christian, she insisted one’s own views don’t play a role. “It’s not the law of Amy,” she told senators. “It’s the law of the American people.”
This week, Barrett pressed the lawyers to explain why women couldn’t simply give up babies for adoption now that there are safe-haven laws in the states.