Let’s tell the blatant truth right up-front: Senate Republicans are understandably upset by the leaking of the Supreme Court’s always-secret draft opinion. Especially this supremely controversial one.
We all now know that the court’s new conservative majority voted secretly in February in favor of overturning the half-century of precedent-setting rulings that legalized the rights of America’s women to have medically safe abortions. But they weren’t quite ready to tell you how dangerous the court’s still-being-considered decision can turn out to be for your daughters, wives and loved ones.
If your teenage daughter is raped, her government may force her to give birth to her rapist’s child. If a pregnant wife’s health is endangered, her government may insist she risk her life and give birth anyway.
Yet we understand the anger Republican leaders feel because of this inconvenient leak. After all, they worked extraordinarily hard, during Donald Trump’s presidency, to craft constitutionally sufficient con-artistry that their president’s nominees dished after swearing to God they would tell “the truth, the whole truth and nothing but the truth.” Some wavering yet astonishingly gullible Republican senators apparently heard only what they wanted to hear – and voted the way their leaders wanted – in confirming Justices Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett.
Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska assured us that, based on their public comments and private assurances, Trump’s nominees would respect the abortion legalizing precedent of the decisive 7-2 ruling in the 1973 case of Roe v. Wade. But Collins and Murkowski never got confirmation – they just got conned.
Rewind and recall what they heard:
Justice Brett Kavanagh desperately needed Collins’ vote to achieve his narrowest 50-48 Senate confirmation. So he called the Roe v. Wade ruling that legalized abortions nationally “settled as precedent” or “precedent on precedent.” He even added that precedence is “not a matter of policy to be discarded at a whim.”
But whim this: When some senators asked if, when he called the Roe decision “settled as precedent,” he meant it was also “correctly settled” and “settled law,” Kavanagh of course wouldn’t play their silly senatorial word game. Yet Collins voted to confirm Kavanagh, saying she had “full confidence” he wouldn’t vote to overturn Roe v. Wade – which, as the leaked draft just showed, is precisely what he was perfectly willing to do.
Justice Neil Gorsuch, in contrast, was willing to say what Kavanagh wouldn’t say – he called the Roe precedent “settled law.” But if that gave you the impression that he meant the “settled law” was settled law that shouldn’t be overturned, well, like Collins and Murkowski, you also got conned. For Gorsuch added a weak-reed garnish – that Roe was settled law “in the sense that it is a decision of the U.S. Supreme Court.” Say what?
Listener Collins chose to just ignore Gorsuch’s weasel-worded nonesuch back then. Now she is saying the leaked draft is “completely inconsistent” with what Kavanagh and Gorsuch told her. That will comfort the raped teens and medically endangered women who will soon be unable to get legal, safe abortions because of Collins’ thoughtless vote.
Justice Amy Coney Barrett, meanwhile, coyly called Roe a precedent at her hearing but declined to call it a “super precedent.” Yet, prior to her nomination, she made clear what she really thought. She endorsed a newspaper ad’s proclamation that it is “time to put an end to the barbaric legacy of Roe v. Wade.” Yet Murkowski, who says she supports abortion rights, voted to confirm Barrett.
Across the aisle, Collins’ and Murkowski’s wails are seen as disingenuous, at best. “Everybody knew that Kavanagh and Gorsuch and Coney Barrett were going to overturn Roe,” said Sen. Chris Murphy, D-Conn.
Meanwhile, one authority on the Supreme Courtship of the confirmation process cautioned us all. In her 1993 Senate hearing, Ruth Bader Ginsburg said judges should issue “no forecasts, no hints,” about the rulings they may someday issue, explaining: “It would display disdain for the entire judicial process.”
Fast-forward: Today, Democrats and Republicans are pressing court nominees to find legal justifications to do what they think is politically right. Sen. Tim Kaine, D-Va., summed up the sad reality of our new, post-Ginsburg era.
“I think justices surprising people is not new,” Kaine said. “But justices looking at you in the face and telling you one thing and then doing something different — that’s very troubling.”
What is also troubling is that too many senators are finding it difficult to just vote their consciences in the carnival of today’s confirmation process. Conscience turns out to be a commodity too many senators find in short supply.
