In their hearings, Gorsuch and Kavanaugh said “As a jugde…” when speaking of Roe vs. Wade. So, as judges, they would respect Roe vs. Wade. As justices, however, it’s fair game.
Thoughts?
I mean, come on. What on Earth would make anyone think that Kavanaugh/Comey/Gorsuch intended anything other than repealing RvW? We all knew they were gonna do that. That was a significant part of why people either did, or did not, want them. Their weasel words during their confirmation hearings were obviously weasel words, and we knew it, and they knew we knew it, and we knew they knew we knew it.
There was no lie. They intended to take rights away, and they did.
I think that what they did was a perfect demonstration of “lying without actually lying”. If the parties and causes had been switched there is absolutely no doubt that Fox and Fiends would have been yelling "LIARS!!!’ from the bloody rafters.
For Trump’s picks I wouldn’t even say they lied without actually lying.
I believe all of them in some ways mentioned that Roe was not irreversible precedent. They said that it was precedent, but I know in Kavanaugh’s case that was qualified by saying that the current 8 SCOTUS justices have cited it as precedent, and Barrett distinguished between precedents that were effectively irreversible and ones that weren’t and put Roe in the second category (if memory serves).
Anyone who was misled by their testimony wanted to be. They were clear that they thought it was possible for Roe to be overturned, and they didn’t answer specifically on how they would rule if they got a case that challenged it.
Re: “misled”, Exactly! They should have been asked specifically about what they would do as a justice.
If you put them under oath they would just plead the 5th.
They were, and they demurred, as everyone knew they would.
A lie has an element of intent to deceive. What did they intend for people to believe? Who believed it?
They mealymouthed the fuck out of their hearings, but of course they did. The only one who lied, I think, was Susan Collins when she acted surprised about their votes.
My understanding is that this is how all Supreme Court nominees have acted at their hearings in recent decades–you don’t say anything which might possibly cause someone to vote against you.
What did Biden’s nominee do?
Stranger
That Susan Collins came away from her meeting with Brett Kavanaugh thinking he said anything meaningful at all says a lot more about her than it does about him. At the time, I just assumed she was lying, but why would she release quotes from the notes that prove she had misrepresented what he said? I think she might have really been stupid enough to hear something he obviously never said.
If you were worried that someone was going to eat your cookie, because they came from a political movement that was built around eating your cookie, and what they told you when you asked them about it was “I understand that the cookie is on your plate and I understand the importance of eating it,” you would not assume that your cookie was safe.
No judge worth anything would answer such a question.
–Justice Ruth Bader Ginsburg
But there is a difference between outright refusing to answer, and the “wink wink, nudge nudge” almost answering the Republican picks gave.
They didn’t almost answer. They blatantly and proudly gave non-answers with minimal factual content, everyone who actually cared about women’s reproductive choice screamed it from the rooftops at the time, and there was a massive gaslighting campaign to make them seem like down-the-middle jurists who were going to carefully consider the issue (often with the aid of elite “liberal” appellate lawyers and law professors who were less concerned about civil rights than about cocktail parties and clerkships for their high-flying students).
IMO a big part of the problem is that a lot of the elites, and a lot of senators find it more convenient to view abortion rights as a technical legal question where the courts are going to answer based on principles like stare decisis independent of social context, rather than a question where morality comes into play. Because if morality comes into play, they have to make moral choices about actions they could be taking to affect one out come or the other.
So two things happened: Politicians and elites elevated stare decisis from an extremely important legal principle that is very widely employed in all aspects of law (which it is) to effectively a hard requirement that cannot be broken (which it is not) because it decreased the need to consider the moral consequences of the choices they make and the powers they hold. And then at the same time, when some important decision like this obviously reverses precedent, the entire illusion is shattered and all the previous choices that were made are exposed as moral choices with the only conclusion being that they either weren’t smart enough to realize the moral choice being made or weren’t brave enough to accept it.
Collins wanted to ask if the nominees understood that the way the law works stare decisis and the way it was applied to Roe v. Wade was a hard boundary that resolved abortion rights by a technical legal application and absolved her of any moral responsibility. They answered with the implication of how stare decisis actually works and she chose to hear what she wanted to.
As others have noted, this is a non-starter.
The better question is to ask something like, “Was Roe decided correctly?” The fact that this kind of question isn’t being asked is proof enough that nobody really wants the answers.
Ginsberg gave her honest opinion during her Court of Appeal confirmation (she thought it wasn’t) and the backlash from that during her SC conformation led her to basically refuse to answer any theoretical questions something her successors have followed.
AFAICT that’s not true. Ginsburg (note spelling) always said that she thought the Roe decision was wrongly handled and abortion rights could have been more solidly grounded in other jurisprudential arguments. But she never claimed that Roe was wrongly decided or showed any support for reversing it.
Should have been based on other jurisprudential arguments…ie wrongly decided. The ratio is wrong but the case wasn’t wrongly decided. What a unique observation, Learned Counsel. 
Happily, we have her own writings and speeches on the topic. They are as I remember from reading them years ago. Her position was fairly centrist (at for the time), Roe was a difficult decision to defend, and had usurped the legislatures role.
In these (and others) she suggests several other ways the Court could have ruled in Roe. Two of them were either of sex discrimination grounds or due to the overbroad nature of the statute. Again these were fairly unexceptional views to hold for a respected centre-left jurist at the time.
Like her friend, Scalia, in later life she embraced positions that her younger self would have seen as extreme. (Scalia’s long held view that Blackmun pulled Roe’s ratio out of his ass is less convincing post Heller when he did exactly that for gun rights, see 55 US 570 at pg 55.
Well put.
Said another way, back then Congress punted the problem to the Court when society needed an answer and needed it now. They punted then largely because it was politically intractable given the degree of polarization at the time.
Consider how much more intractable the abortion question is now given the current level of polarization. Consider further how many much simpler less controversial problems our society has today which are now, versus our current level of polarization, too hard for Congress to deal with so they will all be punted to current and future SCOTUSs to handle. And in many cases sooner not later.
Ultimately a well-designed government almost needs a fourth branch whose role is to manage the things the other branches punt on. But which branch is not also simultaneously the referee who decides on the fly what the rules of the game are.
Kind of like the parent who tells the fighting kids: “Don’t make me stop the car!” this hypothetical 4th branch will act on topic X unless Congress preempts them by acting decisively first. Which way Congress chooses to act is their prerogative. But choosing to ignore the problem is not one of Congress’s prerogatives.
I’m just spitballing here, and there’s obviously a LOT wrong with this modest proposal. Currently a lot of executive orders, regulatory agency rulemakings, etc., try to nibble at this problem using the (weak) tools we do have. These actions are occasionally beaten back by SCOTUS but are also sometimes effective in chivying Congress to act sooner or more forcefully than it otherwise would. And not always in the way the sitting Administration would prefer. But at least Congress has spoken.
As we have it now SCOTUS is simultaneously the rules referee, and the decider when Congress punts. This gives them a gigantic conflict of interest. Which historically they’ve handled mostly OK, but certainly not always. And apparently not for the next ~20-30 years either; that being how long it’ll take until the current justices have died.
Or, a system where the legislative branch is not prone to gridlock and works together with the executive branch to implement policies that the winner of the election campaigned on: a parliamentary system.
Then, if the gov’t punts on an issue, the voters can asses whether they agree with that non-action. Which is what happened in Canada on the abortion issue, and the people in the past 30 years have indicated they agreed with the punt: Canada has no criminal prohibitions on abortion, following the rejection of a proposed abortion law by the Senate, and the decision by the Progressive Conservative gov’t to drop the issue.
ETA: plus, a system where the minority in a chamber does not control whether a matter comes to a vote (particular example of legislative gridlock built into the system).