Following the 6-3 Supreme Court decision overruling Roe and Casey on Friday, two senators — one Republican and one Democrat — accused Supreme Court justices of giving misleading answers during their confirmation hearings when asked about Roe v. Wade.
Democrat Senator Joe Manchin of West Virginia said in a statement that he "trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and [he was] alarmed they chose to reject the stability the ruling has provided for two generations of Americans."
On the other side of the aisle, Republican Senator Susan Collins of Maine said the Court's Dobbs "decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon."
So. That's what's been claimed by the senators, and their claims have been amplified by liberal media and leftist activists. Their statements, without going quite as far, echo what Senate Majority Leader Chuck Schumer said following the unprecedented leak of the Dobbs draft opinion when he claimed Trump-appointed justices had "lied" to the Senate.
It's all part of the campaign to label the Supreme Court — or, just originalist justices who don't do what Democrats prefer — illegitimate and guilty of perjuring themselves under oath, perhaps setting the stage for new calls for impeachment of Kavanaugh and/or Gorsuch. But what did those justices say during their nominating process?
Here's what Kavanaugh said about the standing of both Roe and Casey, and you'll note there's no mention of the decisions being irreversible:
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Roe v. Wade “is important precedent of the Supreme Court that has been reaffirmed many times. But then Planned — and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors,” he said in 2018. “So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
Similarly, Gorsuch recognized the precedent of Roe and the role Casey had in reaffirming the earlier opinion:
“Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered,” he told senators in March 2017. “It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
He added, “For a judge to start tipping his or her hand about whether they like or dislike this or that precedent would send the wrong signal. It would send the signal to the American people that the judge’s personal views have something to do with the judge’s job.”
Nowhere did either justice say that Roe or Casey were unimpeachable and immune from further judicial consideration. Jonathan Turley noted that "[m]ost of those crying 'perjury' do not cite the specific perjurious language" in their claims about what Kavanaugh or Gorsuch misled or lied to the U.S. Senate during their confirmation hearings. Turley explained further in a post Friday afternoon:
The problem is that politicians often display a type of selective auditory attention problem: they hear what they want to hear. Indeed, confirmation hearings are highly choreographed on both sides. Each senator seeks to secure a thirty-second clip showing that he or she secured assurances or trashed a nominee.
For pro-choice senators like Sen. Collins, it is essential to have some answer that would support a claim that, despite seemingly antagonistic judicial philosophical views, a nominee would not likely overturn Roe v. Wade and Planned Parenthood v. Casey.
Notably, however, these same senators have supported the Ginsburg Rule, which is customarily cited to refuse to make promises or predictions on votes. Indeed, I have long been a critic of the rule because it is used to refuse to even discuss judicial philosophy. So nominees now just restate elementary points of judging without saying anything of substance.
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I testified in the Gorsuch hearing and he was widely viewed as a Roe skeptic. After all, he wrote a book that declared the “the intentional taking of human life by private persons is always wrong.”
When asked about that statement in the context of Roe, Gorsuch responded: “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment.”
When Durbin asked if he accepted that, Gorsuch stated another truism: “That’s the law of the land. I accept the law of the land, senator, yes.” In other words, he accepted that Roe is the established precedent. That is about as earthshaking as saying he accepts that the Supreme Court sits in Washington. Likewise, then-senator Al Franken asked Gorsuch if he viewed Roe as “settled law.” Again, that is like asking for the location of the Supreme Court. Gorsuch declared “It is absolutely settled law.”
Then came Kavanaugh.
Kavanaugh also stated the obvious in calling Roe “important precedent” and noting that the Court strives to preserve precedent. When pressed by Sen. Dianne Feinstein (D., Cal.), he again said that such cases are “entitled the respect under principles of stare decisis” and “one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”
Kavanaugh succeeded in repeating nothing but verbal nullities.
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What is most striking about these claims that the justices lied is that most of these critics insisted during their confirmations that they were clearly antagonistic toward Roe. Nothing that they said changed any minds on their judicial philosophy as hostile to the logic of Roe.
So no. Kavanaugh and Gorsuch didn't lie. They didn't mislead. They followed the precedent set by Ruth Bader Ginsburg during their confirmation hearings and then followed the law and the Supreme Court's larger precedent for righting wrongly-decided cases once confirmed. If senators are mad, it's because they know they got played like a violin by President Trump and Mitch McConnell — with a health assist from, ironically, Senate Majority Leader Harry Reid and Justice Ruth Bader Ginsburg.
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