THE PRESIDENT: As I said when I — when this hit, as I was getting on the plane to go down to Alabama, this is about a lot more than abortion. I haven’t — I hadn’t read the whole opinion at that time.
But this reminds me of the debate with Robert Bork. Bork believed the only reason you had any inherent rights was because the government gave them to you. If you go back and look at the opening comments from — by the Bork-Biden — when I was questioning him as chairman, I said, “I believe I have the rights that I have not because the government gave it to me, which you believe, but because I’m just a child of God; I exist.”
Needless to say, Robert Bork did not believe that government confers rights. In fact, Biden got this backwards — Bork believed rights descend from natural law and are protected by the Constitution from encroachment by government. It’s Biden and his team that believes that rights are conferred by government, and that government can therefore create and destroy such rights as it sees fit. That is, in fact, their entire justification for defending Roe — that the Supreme Court created that right, and therefore it can never be contradicted even by a subsequent Supreme Court.
As dumb as this argument from Biden was, the argument that the current conservative justices somehow committed perjury during their confirmation hearings is absolutely absurd. Bork thought that he could have an honest and open colloquy with senators determined to demonize him and destroy his chances for confirmation. After seeing how well that worked out, nominees to the Supreme Court and largely also to the appellate courts have adopted the so-called Ginsburg Rule and refuse to get specific on any point.
Ruth Bader Ginsburg was the first to apply this approach. In her 1993 confirmation hearing, Ginsburg wisely chose not to answer specific questions about hot-button issues, arguing that she would likely have to hear such cases in the future. Edwin Meese pointed out specific examples from her testimony when John Roberts similarly demurred in 2005 and got criticized for it:
Biden warned senators not to ask questions about “how [Ginsburg] will decide any specific case that may come before her.” Ginsburg, then serving on the same court as Judge Roberts does today, followed Biden’s roadmap.
Sen. Leahy asked about the religion clauses of the First Amendment. Ginsburg responded simply: “I prefer not to address a question like that.” Leahy pressed for her interpretation of Supreme Court precedent on the subject, but Ginsburg again demurred: “I would prefer to await a particular case.” Leahy finally backed off: “I understand. Just trying, Judge. Just trying.”
Sen. Strom Thurmond asked whether Ginsburg thought states could “experiment with and provide for diverse educational environments aided by public funding.” Ginsburg refused to give an answer: “Sen. Thurmond, that is the kind of question that a judge cannot answer at-large.” The senator asked a narrower question about the “constitutionality of some form of voucher system.” Ginsburg replied, “Sen. Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.”
Ginsburg refused two senators’ requests to address homosexual rights. “[A]nything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before a court.” In fact, she exercised the Rule to avoid answering any questions relating to sexual orientation: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”
When pressed on another issue, she refused to discuss her “personal reactions” to a particular Supreme Court case. “I have religiously tried to refrain from commenting on a number of Court decisions that have been raised in these last couple of days.” Indeed.
Ginsburg certainly answered many of the questions asked of her, but nothing of substance to lock her into particular policy positions. The same has been true of every subsequent nominee from presidents of both parties. No one lies in Senate Judiciary confirmation hearings about their approach to hot-button issues, because no nominee ever says anything specific or makes even veiled promises on their future decisions.
That’s even true on the use of stare decisis, the basis on which Democrats are now levying allegations of perjury. Every nominee, whether from Republican or Democratic presidents, promises to respect stare decisis, but no one ever pledges that stare decisis will be the highest value they consider while deciding cases. Nor should they, especially at the Supreme Court, where reversals occasionally do happen. Plessy and Korematsu are the most noted these days, but Roberts himself authored Citizens United, which overturned two previous Supreme Court precedents, and this court overturned others in Janus two years ago. There are other examples, and there will be in the future as well.
Jonathan Turley wrote last week to rebut the allegations of perjury, still worth reading now. Rather than finding perjury in the transcripts, Turley instead found a lot of selective hearing:
The one exception to this pattern of confirmation nonspeak was Barrett. At the time, I wrote that Barrett was refreshingly and surprisingly honest about her judicial philosophy and approach to Roe. She specifically rejected the claim that Roe constitutes “super precedent.” Barrett said that this term “define[s] cases that are so well settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.” (Notably, Judge Ketanji Brown Jackson took the same position against Roe as super precedent.).
What is most striking about these claims that the justices lied is that most of these critics insisted during their confirmations that they were clearly antagonistic toward Roe. Nothing that they said changed any minds on their judicial philosophy as hostile to the logic of Roe.
Notably, liberal nominees have used the same language about cases like District of Columbia v. Heller, supporting gun rights. They acknowledge that it is a settled precedent but that does not guarantee that they will vote to preserve it. Indeed, they have voted to limit or overturn past cases with which they disagree. No one called for perjury prosecutions or denounced them as liars.
The requirements for conditional supremacy of stare decisis resembles Potter Stewart’s test on obscenity: Democrats know it when they see it. It’s also worth pointing out that Heller is grounded in actual constitutional text, ie the Second Amendment, whereas neither the word “abortion” or “privacy” appear anywhere in the Constitution. That wouldn’t stop a progressive justices from voting to overturn Heller at some point if they could formulate a constitutional (rather than political) argument for it.
Anyway, the point is that no one committed perjury in these confirmation hearings, either on stare decisis or on some promise regarding Roe. The actual conclusion is that confirmation hearings are useless political theater that does nothing except excite fundraising opportunities. With any luck, however, those will dry up if and when the court overturns Roe and sends the issue of abortion where it belongs — to the states and to the people.