WASHINGTON — During a two-hour meeting in her Senate office with Supreme Court nominee Brett M. Kavanaugh on Aug. 21, 2018, Maine Senator Susan Collins urged why she should trust him not to overthrow Roe v. Wade would bring if she supported his confirmation.
Judge Kavanaugh did his best to reassure her that he posed no threat to the groundbreaking ruling on abortion rights.
“Start with my track record, my respect for precedents, my belief that it is rooted in the Constitution, and my commitment and importance to the rule of law,” he said, according to concurrent notes kept by multiple staffers at the meeting. . “I understand the precedent and I understand the importance of undoing it.”
“Roe is 45 years old, it’s been reconfirmed many times, a lot of people care about it, and I’ve tried to show that I understand the implications in the real world,” he continued, according to the notes, adding : “I’m a non-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”
Persuaded, Ms. Collins, a Republican, gave a detailed speech a few weeks later outlining her rationale for supporting future justice, citing his stated commitment to Roe’s precedent, and helped his confirmation after a bitter struggle. On Friday, Judge Kavanaugh joined the majority in overturning the decision he told Ms Collins he would protect.
His apparent turnaround in the matter on Friday prompted Ms. Collins and another Senator, Joe Manchin III of West Virginia, who gave Judge Kavanaugh crucial votes for his limited confirmation to express their anger, saying they felt their confidence had been lost. violated. Their outcry was echoed at the Capitol by lawmakers who said Friday’s court decision helped boost what remained of the Supreme Court nominees’ credibility during their hearings.
“I feel misled,” Ms Collins said in an interview, adding that the decision contrasted sharply with assurances she had received privately from Judge Kavanaugh, who had made similar, albeit less exhaustive, statements at his public hearing. .
Mr. Manchin, the only Democrat to vote for Judge Kavanaugh, also expressed similar feelings about Judge Neil M. Gorsuch, who made his own strong statements about holding a precedent during his confirmation in 2017.
“I trusted Judge Gorsuch and Judge Kavanaugh when they testified under oath that they also believed Roe v. Wade set an established legal precedent and I am alarmed that they chose to reject the stability the ruling has provided for two generations of Americans. said Mr Manchin. , who is against abortion.
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 future judges are unlikely to answer in full and offer nominees comforting code words without committing to one. specific position to bind .
Senators bombard the nominee with questions about stare decisis – the principle of standing by things decided – and commitment to precedent. Nominees tell the senators as little as possible, but enough to get by so the senators can cast their votes as they were inclined, depending on the party of the candidate for president. It usually doesn’t cause a huge kickback.
But with the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization on Friday, which debunked a nearly 50-year-old precedent and had far-reaching implications, those declarations of allegiance to precedent began to resemble traditional hearing rhetoric and more, in the words by Senator Richard Blumenthal, Democrat of Connecticut, as “rank cheating”.
“I don’t respect some judges anymore when you consider what they told us during their hearings,” said Mr. Blumenthal, a former Supreme Court clerk. “Their credibility is approaching zero with us, but also with the American people.”
Speaker Nancy Pelosi also weighed in at the judges angrily, accusing them of misleading the public as they searched for their seats. “What about those judges who come before the senators and say they respect stare decisis, what are the precedents of the court, that they respected the right to privacy in the United States Constitution?” she said. “Did you hear that? Didn’t they speak the truth?”
Ms Collins won re-election in 2020 but faced fierce political backlash for her support of Judge Kavanaugh, with her critics saying she allowed him to vote because she was determined to vote for him. The lawyers also say that politicians and members of the judiciary do not view precedents in the same way and that it is not immutable. That was a point Judge Kavanaugh himself seemed to be making in his endorsement in Friday’s Dobbs case.
“Following precedent is the norm, and stare decisis is setting a high bar before this Court can override precedent,” he wrote. “However, the history of this court shows that stare decisis is not absolute, and indeed cannot be absolute.”
But during his confirmation hearings, Judge Kavanaugh placed much more emphasis on the first part of that statement and much less on the second, which helped Ms. Collins and Mr. Manchin go out with rare, extremely sharp criticisms of the judges’ integrity. Ms. Collins noted that during her discussions with Judge Gorsuch, he assured her that he had written “the book” on precedent, a treatise entitled “The Law of Judicial Precedent”.
Kentucky Republican Senator Mitch McConnell, who as a majority leader played a monumental role in creating the current court composition, said he did not believe the nominees he sent during the Trump administration broke trust with the Senate.
“I think precedent is important and I don’t think any of these nominees have promised they will never overturn the precedent,” he said. “Sometimes a precedent has to be reversed.”
Many consider Robert Bork to be the last Supreme Court nominee to have in-depth conversations with senators about how he would rule from the bench, and his 1987 rejection was attributed to his outspokenness.
Since then, the nominees have been very careful, following what has come to be known as the Ginsburg Rule. It is named after Judge Ruth Bader Ginsburg, who died in 2020 and said at her 1993 hearing that a judicial candidate should “provide no predictions, no hints, because that would not only show disregard for the specifics of the particular case.” , it would show contempt for the entire judicial process.”
Other nominees have shown some variation on that approach. Chief Justice John G. Roberts Jr. assured the Senate in 2005 that he would act as umpire, saying that “my job is to give balls and strikes, not to throw or hit.”
At this year’s most recent hearing, Judge Ketanji Brown Jackson frustrated Republicans when she refused to give a clear definition of her legal philosophy, instead focusing on how she prepared for cases.
In Judge Kavanaugh’s case, Ms Collins pointed to the deep and repeated commitments he made to precedent when it came to Roe to clear the way for her to vote for him, only to see him join the Conservative majority. of the court by ruling the opposite way.
“It is not conservative to set a precedent overnight that the country has relied on for half a century,” she said in a statement. “It is a sudden and radical shock to the country that will lead to political chaos, anger and a further loss of confidence in our government.”
With the court increasingly involved in such high-profile political battles, the question now is what effect the outcome will have on future judicial appointment hearings and how lawmakers will respond to feeling misled in recent hearings.
Some say changes are in order.
“The hearings are an affront to everyone’s intelligence right now,” said Brian Fallon, the head of progressive judicial advocacy group Demand Justice. “The willingness to have these nominees answer in bromides, if at all, is a holdover from a time when the court was above politics. That time is long gone now.”