Abortion hearing revives confirmation debate
In Mississippi case, Trump justices appear to abandon pledges to respect Roe vs. Wade.
Amy Coney Barrett told senators during her confirmation hearings that laws could not be undone simply by personal beliefs, including her own, saying: “It’s not the law of Amy.”
But in last week’s landmark Supreme Court hearing over a Mississippi law that could curtail if not outright end women’s right to obtain an abortion, the two newest justices struck a markedly different tone, pursuing lines of questioning widely viewed as evidence of the court’s willingness to dismantle decades-old decisions on abortion.
The disconnect is raising fresh questions about the substance, purpose and theater of the Senate confirmation process that some say is badly broken. And it’s creating political difficulties for Collins and another Senate Republican who supports abortion rights, Sen. Lisa Murkowski of Alaska, as the nation confronts the potential unraveling of the law based on the high court’s 1973 decision in Roe vs. Wade.
“I support Roe,” Collins said as she ducked into an elevator shortly after Wednesday’s arguments at the court. She voted to confirm Kavanaugh in 2018 but opposed Barrett’s nomination because it came right before the 2020 presidential election.
Murkowski declined to speak to a reporter in a Capitol hallway Thursday, and has not provided further public comment. She opposed Kavanaugh and supported Barrett, who were among the most narrowly confirmed nominees by the split Senate.
The court’s ruling on the Mississippi case may not be known until June, but last week’s arguments have revived concerns that the judicial branch, like the nation’s other civic institutions, is becoming deeply politicized, and that Congress — specifically the Senate — must do better at advising and consenting on presidential nominees.
“It’s not like the senators have been naive and have trusted too much,” said Neil Siegel, a law professor at Duke University, who has served as a special counsel to Senate Democrats. “I think the problem is primarily that we’re deeply polarized, and the Constitution makes nomination and confirmation of federal judges, including [Supreme Court] justices, a political process.”
Confirmation hearings before the Senate Judiciary Committee are intense, with hours-long sessions that typically drag on for days as one senator after another grills the president’s nominee over his or her approach to the law.
Kavanaugh’s hearing exploded amid allegations he had sexually assaulted Christine Blasey Ford when they were teenagers, claims he vehemently denied.
The abortion debates have been front and center at confirmation hearings, and senators snapped to focus when President Trump nominated three conservative justices during his term, potentially tipping the nine-member court away from centrists and liberals.
Suddenly what had been long debates over the legal precedents set by Roe and another landmark case, Planned Parenthood vs. Casey, became real-life questions for American women as Republicans reached for the long-sought goal of rolling back abortion access.
Kavanaugh repeatedly said under grilling from Democratic and Republican senators in 2018 that women’s right to an abortion had been affirmed.
“The Supreme Court has recognized the right to an abortion since the 1973 Roe vs. Wade case — has affirmed it many times,” he told Sen. Lindsey Graham (R-S.C.).
To Sen. Dianne Feinstein (D-Calif.), Kavanaugh emphasized “the importance of the precedent” under previous rulings, and said a “woman has a constitutional right to obtain an abortion before viability,” referring to the 24 weeks of pregnancy now in question under the Mississippi law, which would lower the threshold to 15 weeks.
He won over Collins, who is not on the panel, after his assurances during a two-hour meeting.
Yet, during last week’s court hearing, Kavanaugh read from a long list of cases that have nullified past precedents, and questioned why the court couldn’t now do the same with abortion.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” he said.
Kavanaugh said in the court hearing that the abortion debate was “hard” and that perhaps the court should let the states decide — which would essentially end the federal right to the procedure.
Some senators said the justices could simply be submitting a line of questioning, forcing the lawyers for the state and the federal government to respond, rather than reflecting their own reading of the law.
But Sen. Amy Klobuchar (D-Minn.), who had intense exchanges with Kavanaugh and Coney Barrett during their confirmation battles — and voted against both — said what she heard from the court was about what she expected.
“I’m not one bit surprised,” Klobuchar said.
Barrett had told senators that Roe vs. Wade did not fall in the category of a “super precedent,” described by legal scholars as cases that are so settled there are no calls to revisit them.
Yet the conservative Christian nominee insisted that one’s own views shouldn’t play a role. “It’s not the law of Amy,” she told senators. “It’s the law of the American people.”
This week, Barrett pressed the lawyers to explain why women couldn’t simply give up babies for adoption, asking, “Why didn’t you address the safe haven laws, and why don’t they matter?”
Asked about the disconnect between the confirmation hearings and the court arguments, Sen. Richard J. Durbin (D-Ill.), now the Judiciary Committee chair, acknowledged the hearings have their limits, but refrained from judgment until the court issues its ruling.
Nominees have arguably not been as upfront on their views on abortion since Ruth Bader Ginsburg said in her own confirmation hearings in 1993 that the decision to bear a child is “central to a woman’s right, her dignity.” The norm now is for nominees to hold their views close.
“We can’t ask for sworn affidavits,” Durbin said. “My belief is the person and their life experience is more predictive of the outcome of future cases than any declaration they make to a committee.”
Sen. John Cornyn (D-Texas), a former judge, shrugged off any changes from what nominees say in committee hearings as a fact of life in politics.
“I’ve seen too many confirmation conversions, where people basically repudiate things they’ve done and said in the past in order to get confirmed, but once somebody gets confirmed, there’s basically nothing we can do about it,” said Cornyn, who voted for both Kavanaugh and Barrett.
“I don’t think they’re a sham,” he said. “I think there’s useful discussions, but obviously there’s no consequences associated with voting in a way that’s different from what you said in the hearing.”
