If GOP nominees lied to senators, then so did Kagan

During Elena Kagan’s 2009 confirmation hearings for the office of solicitor general, Sen. John Cornyn, R-Tex., asked her: “Do you believe that there is a federal constitutional right to same-sex marriage?” She replied, “There is no federal constitutional right to same-sex marriage.”

The following year, when President Barack Obama nominated her to the Supreme Court, and conservatives tried to paint her as a guaranteed vote for same-sex marriage, her supporters pointed to this answer as proof that any concerns were unfounded. She was confirmed 63-37. But when she got to the high court, she to find that there is, in fact, a constitutional right to same-sex marriage.

Did Kagan lie? No. As she explained in a 2009 letter, she was simply describing existing case law, which did not at the time recognize a constitutional right to same-sex marriage.

This history is worth recalling as some on the left now argue that members of the court’s conservative majority should be impeached for lying during their confirmation hearings about whether Roe v. Wade could be overturned. “Every single one of them said under oath that they would actually preserve Roe,” claimed Sen. Kirsten Gillibrand, D-N.Y.. “That is absolutely fraud, and there should be consequences.”

In fact, none of the conservative justices promised to uphold Roe. Doing so would be an impeachable offense. It would be a serious violation of judicial ethics for a nominee to the federal bench to say how they would vote in a case before hearing the facts and evidence. As Ruth Bader Ginsburg explained during her 1993 confirmation hearings, “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.”

Of course, none of the justices did that. Kavanaugh explicitly declined to directly answer whether Roe was “correct law,” but he said, “Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. … So that precedent on precedent is quite important as you think about stare decisis in this context.” Gorsuch similarly declared that Roe “is a precedent of the U.S. Supreme Court. It has been reaffirmed. … So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

This is similar to what Kagan said during her July 2010 Supreme Court confirmation hearing, when she was asked whether she agreed that the court’s rulings in District of Columbia v. Heller and McDonald v. Chicago mean that the Constitution guarantees a fundamental right for an individual to own a firearm, particularly for self-defense.

She replied that Heller and McDonald are “settled law” and “binding precedent entitled to all the respect of binding precedent in any case.” But in this year’s New York State Rifle & Pistol Assoc. v. Bruen, she voted to uphold New York’s draconian gun law, which required anyone who wanted a license to carry a concealed handgun outside the home to show “proper cause” for doing so.

If Gorsuch and Kavanaugh deceived the Senate, then so did Kagan. And if Gorsuch and Kavanaugh should be impeached, then Kagan should be as well.

In fact, none of them lied -not Gorsuch, not Kavanaugh, not Kagan. It is perfectly understandable for senators to try to divine how a justice, if confirmed, would rule on a case they care about. But it would be a gross dereliction of judicial ethics for a nominee to prejudge a case or give senators any assurances of how they would decide. Which is why they all follow the “Ginsburg rule.” And there is nothing impeachable about that.