Justices’ earlier Roe assurances in doubt
Kavanaugh, Barrett are striking different tones now
WASHINGTON – During his Senate confirmation hearing as a Supreme Court nominee, 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 said during her hearing that laws could not be undone simply by personal beliefs.
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.
The disconnect is raising fresh questions about the Senate’s confirmation process, which 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.
“I support Roe,” Collins said as she ducked into an elevator after Wednesday’s arguments. The Maine Republican voted to confirm Kavanaugh but opposed Barrett’s nomination as too close to the 2020 presidential election.
Murkowski declined a hallway interview Thursday at the Capitol. She opposed Kavanaugh and supported Barrett.
The court’s ruling on the Mississippi case may not be known until June, but the fallout from the week’s arguments is reviving concerns that the judicial branch, like the nation’s other civic institutions, is becoming deeply politicized, and that the Senate must do better in its constitutional role to advise and consent on presidential nominees.
“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,” said Neil Siegel, a law professor at Duke University, who has served as a special counsel to Senate Democrats.
Confirmation hearings before the Senate Judiciary Committee typically drag for days as one senator after another grills the president’s nominees over their approach to the law.
Kavanaugh repeatedly told the senators under grilling from Democrats and Republicans that the 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.
Yet during this week’s court hearing, Kavanaugh read from a long list of court cases that have overturned past precedents.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” he said.
Kavanaugh said during the court hearing that 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 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.
At her hearing, Barrett 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 lawyers to explain why women couldn’t simply give up babies for adoption, now that the states have safe haven laws. “Why didn’t you address the safe haven laws and why don’t they matter?”
Asked about the disconnect between the Senate hearings and the court arguments, Sen. Richard Durbin, D-ill., and now the Judiciary Committee chairman, acknowledged the hearings have their limits, but refrained from judgment until the court issues its ruling.
Perhaps not since Ruth Bader Ginsburg told senators during her confirmation hearing in 1993 that the decision to bear a child is “central to a woman’s right, her dignity” have nominees been as out-front on their views. The norm now is for nominees to hold their views close.
“We can’t ask for sworn affidavits,” Durbin said. “My belief is the person and their life experience is more predictive of the outcome of future cases than any declaration they make to a committee.”
Republican Sen. John Cornyn of Texas, a former judge, shrugged off the difference between what’s said in committee hearings as a fact of life in politics.
“I’ve seen too many confirmation conversions, where people basically repudiate things they’ve done and said in the past in order to get confirmed, but once somebody gets confirmed, there’s basically nothing we can do about it,” said Cornyn, who voted to confirm Kavanaugh and Barrett.
“I don’t think they’re a sham,” Cornyn said. “I think there’s useful discussions, but obviously there’s no consequences associated with voting in a way that’s different from what you said in the hearing.”