Re: The Justices Didn't Lie About Roe v. Wade - And Democrats Know It

[Gregory P. Schermer]

In article <smfern$klc$9...@news.dns-netz.com>
<governo...@gmail.com> wrote:
>
> Democrats love killing babies.
>

There is definitely some serious misrepresentation going on
about what was said in those hearings about Roe and Casey, but
it’s not coming from the Justices.

Calling a precedent “settled” means only that it exists and says
absolutely nothing about whether it could, or should, be
unsettled.

Schumer and others who claim that Justices lied or
misrepresented their views about overruling Roe or Casey are
lying or misrepresenting those Justices’ views.

Within hours of the publication of the leaked first-draft
opinion in Dobbs v. Jackson Women’s Health Organization
suggesting that the Supreme Court will overrule Roe v. Wade and
Planned Parenthood v. Casey, Senate Majority Leader Charles
Schumer (D-NY) and House Speaker Nancy Pelosi (D-CA) issued a
joint statement accusing “Republican-appointed Justices” of
having “lied to the U.S. Senate.” Two days later, Schumer
identified the “lie” as “misrepresenting their views” during
their confirmation hearings “on respecting precedent when it
came to decisions like Roe.”

There is definitely some serious misrepresentation going on
about what was said in those hearings about Roe and Casey, but
it’s not coming from the Justices.

Some members of Congress went even further than Schumer. Sen.
Kirsten Gillibrand (D-NY), for example, claimed that “several
Supreme Court justices, including Justice Alito … stated during
their confirmation hearings that they would not overturn Roe v.
Wade. Every single one of them said … under oath, that they
would actually preserve Roe.”

No Supreme Court nominee has ever come close to saying any such
thing about any precedent. In fact, for decades, nominees of
both parties have studiously avoided giving even what Justice
Ruth Bader Ginsburg described in her 1993 hearing as “hints …
forecasts … [or] previews.” Transcripts of those hearings, which
are available here, here, and here, show exactly what the
Justices said and expose how accusations of “lying” are pure
fiction.

>>> Dobbs Case Tests Our Commitment to the Constitution

During the September 2005 hearing on John Roberts’ nomination to
be chief justice, then-Sen. Joe Biden (D-DE) compared such
gatherings to a “kabuki dance.” Senators try to determine how
nominees will vote or write regarding certain issues, while
nominees resist pressure to show their judicial hand. Nominees,
for example, decline to say whether particular precedents either
were correctly decided or should be overruled and often refer to
precedents as “settled.” Schumer now claims this word is a
promise to oppose overruling a precedent.

Every Supreme Court nominee who has referred to a precedent as
“settled” has not only meant the same thing but has even defined
it during their hearings. A precedent is settled because it is a
precedent—that’s it, nothing more. Calling a precedent “settled”
means only that it exists and says absolutely nothing about
whether it could, or should, be unsettled. In Justice Samuel
Alito’s January 2006 hearing, Sen. Richard Durbin (D-IL) asked
if Roe v. Wade “is the settled law of the land.” Alito responded
that “settled” did not mean “it can’t be re-examined.” Instead,
“settled” means that Roe is “a precedent that is entitled to
respect as stare decisis.”

In her July 2009 hearing, Justice Sonia Sotomayor explained that
“[a]ll precedents of the Supreme Court I consider settled law
subject to the deference [which the] doctrine of stare decisis
would counsel.” She gave the identical response about whether
several individual precedents were settled: “That is the
precedent of the Court, so it is settled law.” Asked about Casey
in particular, Sotomayor repeated that it “is the precedent of
the Court and settled in terms of the holding of the Court.”

Justice Elena Kagan followed the same script during her July
2010 hearing. District of Columbia v. Heller and McDonald v.
Chicago, holding that gun bans violated the Second Amendment,
are, Kagan said, “settled law” and are “entitled to all the
respect of binding precedent.” She put in the same “settled”
category precedents such as Citizens United v. FEC, holding that
restrictions on election-related expression violated the First
Amendment; Gonzalez v. Carhart, finding the federal Partial-
Birth Abortion Ban Act constitutional; and United States v.
Lopez and United States v. Morrison, which held that two federal
statutes exceeded Congress’ authority to regulate interstate
commerce. Kagan explained to Sen. Jeff Sessions (R-Ala.) that
she did not distinguish between “precedent” and “settled law.”
She was crystal clear: “What I mean to say when I use those
phrases is, these are decisions of the court.”

The fact that Schumer enthusiastically supported Sotomayor and
Kagan proves that he knew exactly what they meant. After all, he
has said that “overturning Citizens United is probably more
important than any other single thing we could do to preserve
this great and grand democracy.” He would never have supported a
Supreme Court nominee who pledged never to consider overruling
Citizens United or the other precedents Kagan called “settled.”

Republican nominees have carefully duplicated the
Sotomayor/Kagan strategy. During Gorsuch’s March 2017 hearing,
for example, he told Sen. Al Franken (D-MN) that Obergefell v.
Hodges, holding that the Constitution protects a right to same-
sex marriage, is “absolutely settled law.” Similarly, Gorsuch
told Sen. Richard Blumenthal (D-CT) that Griswold v. Connecticut
and Eisenstadt v. Baird, which created and extended a
constitutional right to use contraception, “are precedents of
the U.S. Supreme Court” that “have been settled.” He told Sen.
Chris Coons (D-CT) that Casey, Lawrence v. Texas, which created
a right to same-sex sodomy, and Obergefell are all “settled law
in the sense that [they are] decision[s] of the U.S. Supreme
Court, entitled to the weight of precedent.”

Kavanaugh’s September 2018 hearing followed the same pattern,
with Sen. Dianne Feinstein (D-CA) asking “what do you mean by
‘settled law’?” Kavanaugh could have been reading from the
Sotomayor hearing transcript: “Senator, I said that it is
settled as a precedent of the Supreme Court.” Blumenthal asked
if Kavanaugh would “[c]ommit, sitting here today, that you would
never overturn Roe v. Wade.” Kavanaugh gave the expected
response: “Senator, each of the eight Justices currently on the
Supreme Court, when they were in this seat, declined to answer
that question.”

Similarly, in her October 2020 hearing, Justice Amy Coney
Barrett told Feinstein that Obergefell “is a precedent of the
Supreme Court entitled to respect under the doctrine of stare
decisis.” Barrett said the same thing to Durbin about decisions
upholding the Affordable Care Act and to Sen. Sheldon Whitehouse
(D-RI) about United States v. Virginia, which struck down single-
sex education at the Virginia Military Institute, and Bostock v.
Clayton County, construing Title VII of the 1964 Civil Rights
Act as barring employment discrimination on the basis of sexual
orientation or gender identity.

>>> Overturning Roe v. Wade Would Be Neither Radical Nor
Conservative. It’s Just Right Thing to Do.

Republicans did not flinch at Republican nominees calling these
precedents “settled” any more than Schumer did when Kagan put
Citizens United in that category. Each nominee chose to use that
label precisely because, at least in the Supreme Court
confirmation context, it provides a way to respond while not
compromising impartiality. Asked by Durbin what she meant by
“settled,” Barrett also echoed Sotomayor: “Any precedent
entitled to respect under the doctrine of stare decisis could be
characterized as settled.” In other words, every precedent is
settled.

Notice that, when referring to precedents as “settled,” nominees
also add phrases such as “respect as stare decisis” (Alito),
“entitled to all the weight that precedent usually gets”
(Kagan), “entitled to the weight of precedent” (Gorsuch),
“entitled [to] respect under principles of stare decisis”
(Kavanaugh), and “respect under the doctrine of stare decisis.”
Just as “settled” means a precedent exists, these phrases refer
to the process of determining whether a precedent should be
overruled. The factors used in this process are well known and
have resulted in the Supreme Court overruling its own precedents
hundreds of times.

While Sotomayor said that “all precedents of the Supreme Court I
consider settled,” she has voted several times to overrule them.
So has Kagan, who said that “settled” means nothing more than
“precedent.” If, as Schumer claims today, “settled” means
“immune from overruling,” then Sotomayor and Kagan must also
have lied to the U.S. Senate.

This confirmation hearing strategy is well established and has
been followed consistently by nominees of both parties. The
public record is clear. No one, especially members of Congress,
who even casually follows the Supreme Court confirmation process
would fail to grasp something so clear. The obvious conclusion
is that Schumer and others who claim that Justices lied or
misrepresented their views about overruling Roe or Casey are,
well, lying or misrepresenting those Justices’ actual views.

https://www.heritage.org/life/commentary/the-justices-didnt-lie-
about-roe-v-wade-and-democrats-know-it