If lying under oath to the Senate during a confirmation hearing is grounds for impeachment and criminal charges, then at least the three Trump appointees to the Supreme Court should be removed and indicted. They twisted, squirmed, prevaricated, avoiding answering question where they could, posed their answers as questions, but basically they lied to Congress and the American people.
On Tuesday, November 29, Supreme Court Justices questioned lawyers supporting and challenging a new Mississippi law that would prevent women in that state from terminating a pregnancy 15 weeks after conception. If the Court upholds the Mississippi law, it would become a model for laws in other Republican controlled states and effectively reverse the Court’s 1973 Roe v. Wade decision that established a constitutional right to abortion. The Roe decision prohibits states from banning the procedure before fetal viability, the ability of a fetus to survive outside of the womb. Using that standard, abortions are currently permitted until about the 23rd week of pregnancy.
During discussion, Justice Neil Gorsuch, who was appointed to the Supreme Court by Donald Trump in 2017, made it clean that he was willing to overturn the Supreme Court’s 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions that protect the right of a woman to have a safe and healthy abortion. Gorsuch claims that these court decisions were fundamentally incorrect when they were issued. Casey prevents states from setting an “undue burden” on women seeking to end a pregnancy. Gorsuch wants that standard dropped because it is supposedly too “difficult to administer.”
However, during his conformation hearing, “Gorsuch the Liar” did not express such reservations. He told the Senate Committee, Roe v. Wade, decided in 1973, “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.” Under further questioning, Gorsuch reiterated his point about the importance of legal precedent. “One of the facts and one of the features of law that you have to decide it on is the basis of precedent, as you point out. And for a judge, precedent is a very important thing. We do not go reinvent the wheel every day. And that is the equivalent point of the law of precedent. We have an entire law about precedent, the law of judicial precedent.” To emphasize his commitment to legal precedent, Gorsuch cited Alexander Hamilton “who said one important feature of judges, if we are going to give them life tenure and allow them that extraordinary privilege, they should be bound down by strict rules and precedents.” So much for “Gorsuch the Liar.”
Responding to the lawyers representing the state of Mississippi, Justice Brett M. Kavanaugh rhetorically asked “You’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion?” Kavanaugh added, “In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?”
Apparently, Justice Kavanaugh is unfamiliar with the 14th Amendment to the Constitution. The 14th Amendment makes it clear that the Constitution is not neutral on individual rights and expressly forbids states from impinging on those rights. For the benefit of Justice Kavanaugh and his rightwing colleagues on the Supreme Court I quote it here. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
In 2006, during confirmation hearing when he was being considered for a position as judge on the federal District of Columbia Circuit Court, “Kavanaugh the Liar” was questioned by Senator Charles Schumer (Dem-NY) about his position on Roe v. Wade, the 1973 Supreme Court decision that established a woman’s right to abort a pregnancy. Kavanaugh responded: “Senator, on the question of Roe v. Wade, if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the Supreme Court. Senator Schumer repeated the question and Kavanaugh replied: “I’m saying if I were confirmed to the D.C. Circuit, Senator, I would follow it. It's been reaffirmed many times, including in Planned Parenthood v. Casey.” Trying to get confirmed, at that point Kavanaugh did not espouse on a doctrine of judicial “neutrality” or state’s rights.
Again, during his 2018 confirmation hearing for the United States Supreme Court, Senator Diane Feinstein (Dem-CA) questioned Kavanaugh about Roe v. Wade. “So the question comes, and you have said today—not today, but it has been reported that you have said that Roe is now settled law. The first question I have of you is what do you mean by ‘‘settled law’’? I tried to ask earlier do you believe it is correct law? Have your views on whether Roe is settled precedent or could be overturned, and has your views changed since you were in the Bush White House?”
Kavanaugh replied to Senator Feinstein’s question: “Senator, I said that it is settled as a precedent of the Supreme Court, 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 . . . it 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.”
Stare decisis is the legal principle points in litigation should be decided by judges according to past precedent. Again, Kavanaugh did not espouse on a doctrine of judicial “neutrality” or state’s rights but claimed to support the Roe and Casey decisions. Once again, Kavanaugh lied under oath.
During her 2020 Supreme Court confirmation hearing, Justice Amy Coney Barrett, who had signed a petition opposing abortion rights and claiming that fetal rights began at the point of fertilization, claimed "My policy preferences are irrelevant” and that “I have no agenda to try to overrule Casey.” When pressed by Senator Feinstein, Barrett reiterated, “I don’t have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come . . . I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis.”
During discussion of the Mississippi law, Justice Amy Coney Barrett asked a rhetorical question claiming that if the Supreme Court overturned the Roe v. Wade decision, it would not impact on the protection of privacy rights. “Barrett the Liar”, who sworn under oath that she would not make legal rulings based on her own preferences, but based on established law, also recommended that instead of abortions women should carry a fetus to term and put the baby up for adoption.
During discussion of the Mississippi anti-abortion law, Justice Sonia Sotomayor argued that the positions taken by the three Trump Justices and the Supreme Court’s rightwing majority puts the Supreme Court and the American legal system at great risk. Sotomayor demanded to know, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? If people actually believe that it’s all political, how will we survive? How will the court survive?”
Follow Alan Singer on twitter at https://twitter.com/AlanJSinger1