Kavanaugh gave private assurances. Collins says he “misled” her.

WASHINGTON — During a two-hour meeting in his Senate office with Supreme Court nominee Brett M. Kavanaugh on Aug. 21, 2018, Senator Susan Collins of Maine asked him why she should trust him not to rescind Roe v. Wade if she supported her confirmation.

Judge Kavanaugh worked vigorously to reassure her that he was no threat to the landmark abortion rights ruling.

“Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law,” he said, according to contemporary notes kept by several staff members at the meeting. “I understand the precedent and I understand the importance of overturning it.”

“Roe is 45, that’s been reaffirmed many times, a lot of people care a lot, and I’ve tried to demonstrate that I understand the real-world consequences,” he continued, according to the notes, adding, “I’m one to not rock the boat. I believe in stability and the team of nine.

Persuaded, Ms Collins, a Republican, gave a detailed speech a few weeks later, setting out her rationale for backing future justice which cited her stated commitment to the precedent on Roe, helping to clinch her confirmation after a hard fight. On Friday, Judge Kavanaugh joined the majority in overturning the ruling he had told Ms Collins he would protect.

His apparent reversal in the case on Friday prompted Ms Collins and another senator, Joe Manchin III of West Virginia, who gave Judge Kavanaugh crucial votes for his narrow confirmation, to express their anger, saying they felt that their trust had been abused. Their outrage was echoed across Capitol Hill by lawmakers who said Friday’s court ruling helped drain what remained of the Supreme Court nominees’ credibility during their confirmation hearings.

“I feel misled,” Ms Collins said in an interview, adding that the ruling stood in stark contrast to the assurances she had received in private from Judge Kavanaugh, who had made similar, albeit less comprehensive, statements during of its public hearing.

Mr. Manchin, the only Democrat to vote for Justice Kavanaugh, also expressed similar sentiments about Justice Neil M. Gorsuch, who made his own strong statements about upholding precedent when he was confirmed in 2017.

“I trusted Judge Gorsuch and Judge Kavanaugh when they testified under oath that they also believed Roe v. Wade was established legal precedent and I am alarmed that they chose to reject the stability that the decision has brought two generations of Americans,” Manchin said. , himself anti-abortion.

But the senators’ sense of betrayal has only highlighted the Kabuki theater that surrounds the Supreme Court confirmation process on Capitol Hill, in which lawmakers are asking questions they know would-be justices are unlikely to answer. fully and candidates offer comforting code words without committing to any particular position. .

Senators assail the candidate with questions about stare decisis – the principle of sticking to things that have been decided – and commitment to precedent. Candidates tell senators as little as possible, but enough to get away with it, allowing senators to vote according to their predispositions, depending on the party of the president who nominated them. This usually doesn’t cause a huge backlash.

But with the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on Friday, which eviscerated a nearly 50-year-old precedent and had far-reaching consequences, these declarations of loyalty to precedent began to sound less like traditional courtroom rhetoric and more, in the words of the senator. Richard Blumenthal, Democrat of Connecticut, as a “rank deceit”.

“I no longer have any respect for some justices considering what they told us during their confirmation hearings,” said Blumenthal, a former Supreme Court clerk. “Their credibility is close to zero with us, but also with the American people.”

Speaker Nancy Pelosi also weighed in angrily at the judges, accusing them of misleading the public as they sought their seats. “How about those judges coming in front of senators and saying they were respecting stare decisis, which is the precedents of the court, that they were respecting the right to privacy in the Constitution of the United States? she says. “Did you hear that? Were they not telling the truth?

Ms Collins won re-election in 2020 but faced an intense political backlash for her support for Justice Kavanaugh, and her critics say she fell for him because she was determined to vote for him. Legal circles also say that politicians and members of the judiciary do not see precedent in the same way and that it is not immutable. It was a point Judge Kavanaugh himself appeared to be making in his agreement in the Dobbs case on Friday.

“Respect for precedent is the norm, and stare decisis sets a high bar before this Court can overturn precedent,” he wrote. “The history of this tribunal shows, however, that stare decisis is not absolute, and in fact cannot be absolute.”

But during his confirmation hearings, Judge Kavanaugh placed much more emphasis on the first part of this statement and much less on the second, contributing to Ms. Collins and Mr. Manchin going public with rare and extremely pointed criticisms. the integrity of judges. Ms Collins noted that in her discussions with Judge Gorsuch he assured her he had ‘written the book’ on precedents, a treatise called ‘The Law of Judicial Precedents’.

Sen. Mitch McConnell, a Kentucky Republican who as majority leader played a monumental role in creating the court’s current lineup, said he doesn’t believe the candidates he led during the Trump administration had broken faith with the Senate.

“I think precedent is important and I don’t think any of these candidates have promised never, ever to overturn precedent,” he said. “Sometimes precedent has to be overturned.”

Many consider Robert Bork to be the last Supreme Court nominee to engage in deep exchanges with senators about how he would rule the bench and his rejection in 1987 was attributed to his candor.

Since then, the candidates have been very careful and followed what has become Ginsburg’s rule. It is named after Justice Ruth Bader Ginsburg, who died in 2020 and said at her 1993 confirmation hearing that a judicial nominee should offer “no prediction, no guidance, because that would not only show disregard for the specifics of the particular case, it would show contempt for the entire judicial process.

Other candidates showed some variation on this approach. Chief Justice John G. Roberts Jr. assured the Senate in 2005 that he would act as umpire, saying “it’s my job to call balls and strikes, not throw or hit “.

In the final confirmation hearing this year, Judge Ketanji Brown Jackson frustrated Republicans when she refused to give a cursory definition of her judicial philosophy, instead focusing on how she prepared for the cases.

In the case of Justice Kavanaugh, Ms Collins pointed to the deep and repetitive assurances he made of precedent when it came to Roe as paving the way for her to vote for him only to see him join the majority curator of the court by ruling in the opposite direction. .

“Overnight throwing away a precedent that the country has relied on for half a century is not conservative,” she said in a statement. “It’s a sudden and drastic jolt to the country that will lead to political chaos, anger and a further loss of faith in our government.”

With the court increasingly present in such high-profile political fights, the question now is what effect the outcome will have on future judicial nomination hearings and how lawmakers will react to feeling they have been misled in the recent hearings.

Some say changes are needed.

“The hearings are an insult to everyone’s intelligence at this point,” said Brian Fallon, the head of the progressive legal defense group Demand Justice. “The willingness to allow these candidates to answer in bromides, if they answer questions, is a holdover from a time when the court was considered above politics. Those days are long gone now.


Not all news on the site expresses the point of view of the site, but we transmit this news automatically and translate it through programmatic technology on the site and not from a human editor.
Back to top button