Spotlight on confirmation hearings

Draft abortion ruling puts new spotlight on confirmation hearings

Seung Min Kim

Sitting before nearly two dozen senators and a national audience in September 2018, Brett Kavanaugh seemed abundantly clear on his views of the durability of Roe v. Wade.

"It is important precedent of the Supreme Court that has been reaffirmed many times," Kavanaugh said in response to one of a slew of questions on abortion during his confirmation hearings. Furthermore, Kavanaugh underscored that the core tenets of the landmark 1973 decision were upheld nearly two decades later: "It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered."

Less than four years later, Kavanaugh is among the list of justices who, according to a draft majority opinion and an accompanying report published by Politico this week, is poised to overturn Roe.

That apparent contrast between the then-nominee's testimony before senators and his current reported willingness to overturn the landmark decision legalizing abortion access is prompting fresh scrutiny of the Supreme Court confirmation process, in which nominees say as little as possible and senators are left to parse their language on how they would rule.

It is not just the increasingly predictable and evasive answers of nominees that are prodding some senators to conclude that Supreme Court hearings have become empty theater. More and more, the confirmation votes themselves seem a foregone conclusion, with senators hewing to the party line and many using their allotted time to launch political broadsides rather than seek information.

"Our confirmation process for Supreme Court justices, I think, is fairly badly broken and has become not particularly revealing or relevant about what justices will do once seated," said Sen. Chris Coons, D-Del., a member of the Senate Judiciary Committee. "I listened to several justices tell us - as candidates or as nominees - that they would have respected settled precedent. I had my reasons for skepticism given their speeches to Federalist Society gatherings or their writings. But if this becomes law, it confirms that in several cases they were not being truthful."

Sens. Susan Collins of Maine and Lisa Murkowski of Alaska - Republicans who support abortion rights but who each voted to confirm two of President Donald Trump's three Supreme Court nominees - made it clear this week that they will feel badly misled if the draft opinion holds. And Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said simply, "It certainly raises questions about credibility and sincerity."

The carefully chosen words of a Supreme Court nominee have long served as senatorial Rorschach tests of sorts, with lawmakers from both parties often taking away what they want to hear to justify their decisions. But with a majority of justices potentially on the cusp of overturning Roe v. Wade, a growing number of senators - particularly Democrats, for the moment at least - are questioning the utility of the confirmation process and whether justices who enjoy lifetime appointments can somehow be held accountable for their sworn testimony if it proves misleading.

It is an increasing source of anger for Democrats, with few clear answers. Members of the Supreme Court face little direct accountability once they are sworn in. Any proposals for significant changes to the structure of the Supreme Court would face immediate and potentially insurmountable logistical hurdles.

That did not stop furious Democrats this week from renewing their ideas for a far-reaching overhaul of the Supreme Court. Some argued that lifetime tenure, designed to insulate justices from political pressure, has instead become a shield to protect them from consequences.

"Maybe there needs to be term limits for court justices," said Sen. Jon Tester, D-Mont. "I've never been somebody who's advocated for that. But I do think it's incredibly troubling, because these guys are supposed to be of the highest credibility and everything, and this just takes away from it."

In their confirmation hearings, the Trump-nominated justices sent unmistakable signals about Roe as a strong precedent, though some critics say they were clearly giving senators just enough to enable a yes vote.

Kavanaugh called Roe "precedent on precedent" and "settled as a precedent."

Neil Gorsuch said: "It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."

Amy Coney Barrett was less definitive, declining to call Roe a "super-precedent" that is largely beyond review.

In recent decades, nominees have become significantly less candid about how they personally view long-standing court decisions that remain hotly contested, with the landmark 1973 Roe v. Wade decision the most prominent example. During her 1993 hearings, Ruth Bader Ginsburg said judges should offer "no forecasts, no hints," on how they may ultimately rule on a case, for "it would display disdain for the entire judicial process." Subsequent nominees have generally followed the same principle.

That ambiguity from nominees, especially on abortion rights, clearly helped the confirmation prospects of at least Kavanaugh and Gorsuch, even as Trump had campaigned on a promise to choose nominees who would overturn Roe. It was particularly beneficial for Kavanaugh, because he was set to replace Justice Anthony Kennedy, a consistent vote in favor of abortion rights, and a clear message from Kavanaugh that he would vote the opposite way would have ignited a firestorm.

The political backlash in the aftermath of the draft opinion that leaked this week - which Chief Justice John Roberts later said was an authentic draft, though not a finalized version - has been aimed mostly at Murkowski and Collins, who had expressed confidence that the justices would not overturn Roe.

Murkowski, though she opposed Kavanaugh for other reasons, emphasized at the time she did not think he would be a vote to overturn the 1973 decision. This week, she said, "Comments were made to me and to others about Roe being settled and being precedent," adding that if a majority of justices do ultimately overturn Roe, her faith in the Supreme Court would be shaken.

Collins had also repeatedly expressed confidence that Kavanaugh would let Roe stand, citing his insistence, particularly in his public testimony, that the abortion rulings were established precedent and it would be unusual to overturn such decisions. When she announced her support for Gorsuch during his 2017 confirmation proceedings, Collins relayed similar assurances regarding precedent.

This week, Collins said the leaked abortion decision, if it is final, would be "completely inconsistent" with Gorsuch and Kavanaugh's public and private remarks.

Still, in a brief interview with The Washington Post, Collins said confirmation hearings "absolutely" still play a vital role.

"I believe that while there are certainly examples of people throughout the ages who have misled Congress during confirmation hearings, generally confirmation hearings are very useful in allowing members to flesh out a nominee's views," Collins said. "That's one reason this is so staggering, if in fact the decision turns out to be as it is."

Other Republican senators were largely dismissive of the outcry from Democrats that the public had been misled by Supreme Court candidates. They argued that, as Ginsburg stressed in her hearings nearly three decades ago, nominees are ethically constrained from indicating how they would decide issues that could come before them.

"Part of it is just that people don't understand, as a general rule, what precedents mean in a judge's judicial decision-making process," said Sen. John Cornyn, R-Texas, a top member of the Senate Judiciary Committee. Cornyn said judicial precedents are "not inviolable."

Legal scholars recognize that some precedents, even long-standing ones, can sometimes be overturned, especially if they are harmful and untethered from constitutional principles. The draft opinion by Justice Samuel Alito argues that Roe was such a ruling, and it spends many pages criticizing what it calls the 1973 decision's weak reasoning.

"That would be like, saying, you know, Plessy v. Ferguson was settled law," Cornyn said, referring to the 1896 Supreme Court decision that found racial segregation to be constitutional. "Well, it was for a time, but then the court decided that it needed to revisit it because they decided it was wrong and needed to change."

Kavanaugh, in his confirmation hearings, referred to the Supreme Court's 1954 ruling in Brown v. the Board of Education, which nullified the "separate but equal" doctrine in Plessy, in recognizing that not all precedents remain standing.

But Democrats say using the term "settled" was a willfully dishonest way for a nominee to describe an opinion he was prepared to overthrow at the first opportunity.

"You follow the decision that has been set forth by the Supreme Court, subject to the rules of stare decisis. And you see that time and again," Kavanaugh said, using the Latin phrase for respecting precedent. "That is part of stability. That is part of predictability. That is part of impartiality. That is part of public confidence in the rule of law that it is not just going to move pillar to post, that the law is stable and foundational."

In another exchange with now-Vice President Kamala Harris, who as a senator sat on the Judiciary Committee, Kavanaugh emphasized that the system of precedence is "not a matter of policy to be discarded at whim."

Other Democratic senators, however, say it was clear how nominees, particularly those picked by Trump, would rule on abortion, no matter what they pledged publicly. Their beef is largely with the senators who professed to believe otherwise and now say they are shocked.

"Everybody knew that Kavanaugh and Gorsuch and Coney Barrett were going to overturn Roe," said Sen. Chris Murphy, D-Conn. "I get it that, you know, nominees are very careful about what they say, but everybody knew that those votes were votes to overturn Roe."

During the 2020 campaign, several Democratic presidential hopefuls offered proposals to significantly overhaul the Supreme Court, by expanding it beyond the current nine members or establishing term limits, which they argued would lower the temperature on the confirmation hearings by limiting the impact of any individual justice.

But President Joe Biden, a longtime senator and former chairman of the Judiciary Committee, has always been skeptical of such suggestions, and it is not clear that angry Democrats have any easy recourse or path for changing the system. Sen. Tim Kaine, D-Va., said there is little that senators can do about the existing confirmation process aside from exercising even more due diligence.

For instance, Kaine said that Gorsuch had authored rulings on contraception that were "quite extreme" and that senators should have discounted Gorsuch's comments during his confirmation hearing if they appeared to contradict his consistent record.

At his hearing, Gorsuch declined to say whether he agreed with the landmark 1965 decision Griswold v. Connecticut, which established a right to privacy that allowed married couples to use contraception. That right to privacy was a later basis for Roe.

That does not mean the current process is a good one, Kaine added. "I think justices surprising people is not new," he said. "But justices looking at you in the face and telling you one thing and then doing something different - that's very troubling."