During a two-hour meeting in her Senate office with Supreme Court nominee Brett Kavanaugh on August 21, 2018, Senator Susan Collins of Maine pressed him hard about why he should be trusted not to overturn Roe v. Wade if she supported his assertion. .
Kavanaugh has worked hard to reassure her that he does not pose a threat to the historic abortion rights ruling.
“Begin with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment to and importance to the rule of law,” he said, according to contemporary notes kept by several staff members at the meeting. I understand the former and understand the importance of her heart.
Ru 45 years old. It has been emphasized several times. Lots of people care a lot about him, and I’ve tried to prove that I understand the real-world consequences,” he continued, according to the notes, adding: “He judges me. I believe in stability and a team of nine.”
Convinced, Collins, a Republican, gave a detailed speech a few weeks later in which she laid out a rationale in support of future justice that cited his stated commitment to a precedent on Rowe, helping him gain his assertion after a bitter battle. On Friday, Kavanaugh joined the majority in overturning the decision he told Collins he would protect.
His apparent turn on the case on Friday prompted Collins and another senator, Joe Manchin of West Virginia, who gave Kavanaugh critical votes for his narrow assertion, to vent their anger, saying they felt their trust had been misused. Their discontent was echoed throughout the Capitol by lawmakers who said Friday’s court decision helped strip what remains of the Supreme Court nominees’ credibility in their hearings.
“I feel misled,” Collins said, adding that the decision contrasts starkly with assurances she’s received privately from Kavanaugh, who made similar, if less comprehensive, statements at the public hearing.
Manchin, the only Democrat to vote for Kavanaugh, also expressed similar sentiments for Justice Neil Gorsuch, who made his own strong statements about precedent while affirming in 2017.
“I trusted Judge Gorso and Judge Kavanaugh when they testified under oath that they also believed Roe v. Wade set legal precedent, and I am concerned that they chose to reject the stability that the ruling has provided for two generations of Americans,” Manchin said.
But the senators’ sense of betrayal has only highlighted the kabuki theater that surrounds the Supreme Court’s confirmation process on Capitol Hill, where lawmakers ask questions they know potential judges are unlikely to answer fully and candidates offer comforting code words without committing to any particular position. .
Senators fill the candidate with questions about staring at the resolution—the principle of standing by the things that have been set—and adhering to precedent. Candidates tell senators as little as possible but enough to smooth things out, allowing senators to cast their votes as they were inclined to, depending on the party of the nominee president. It usually does not cause a significant backlash.
But with the Supreme Court’s decision in Dobbs v. Jackson’s Women’s Health case on Friday, which removed the guts of a nearly 50-year-old predecessor and had far-reaching consequences, these statements of allegiance to precedent began to sound less like traditional hearing rhetoric and more. , in the words of Senator Richard Blumenthal, Democrat of Connecticut, like “the rank of deception.”
“I have no respect left for some of the justices when you think about what they told us in their plea hearings,” said Blumenthal, a former Supreme Court clerk. “Their credibility is near zero with us, but also with the American people.”
Collins won re-election in 2020 but faced a political backlash for her support of Kavanaugh, and her critics say she allowed herself to join him because she was determined to vote for him. Members of the legal community also say that politicians and members of the judiciary do not see precedent in the same way, and that it is immutable. That was a point Kavanaugh seemed to make in his agreement in Dobbs’ case on Friday.
“Adherence to precedent is the norm, and the decision to stare sets a high standard before this court overturns precedent,” he wrote. “The history of this court shows, however, that the decision to stare is not absolute, and in fact cannot be absolute.”
But during his confirmation hearings, Kavanaugh focused more on the first part of that statement and less on the second, contributing to Collins and Manchin’s public release of an extremely rare criticism of the justices’ impartiality. Collins noted that in her discussions with Gorsuch, he assured her that he had “wrote the book” in a precedent, a treatise titled “Case Law”.
Senator Mitch McConnell, Republican of Kentucky, who has played a huge role in shaping the court’s current structure as the majority leader, said he does not believe the candidates he led during the Trump administration have breached their confidence in the Senate.
“I think the precedent is important, and I don’t think any of these candidates promised them that they would never overturn the precedent,” he said. “Sometimes the former must be revoked.”
With the court’s growing interest in such high-profile political battles, the question now is what impact the outcome will have on future judicial hearings and how lawmakers will respond to feeling they have been misled in recent hearings.
Some say the changes are in order.
“The hearings are an insult to everyone’s intelligence at this point,” said Brian Fallon, president of the Progressive Judicial Advocacy Group demanding justice. “The willingness to allow these candidates to answer by bromides, if they answer questions at all, is a relic of a time when the court was considered above politics. That era is long gone now.”