Alexandria Ocasio-Cortez has called for the impeachment of the Supreme Court justices who voted against Roe v Wade. That, of course, isn't perfectly accurate. She is claiming they lied under oath. She is not alone. Sen. Susan Collins (R-Maine) told The New York Times that she feels Justice Kavanaugh misled her in a private meeting. Others are saying loudly that the three of the most recent appointees lied. Did they?
If you are paying attention, I don't think you can make that case. All three of the most recent appointees were heavily questioned in regard to their stance on Roe. All three of them recognized that it was "precedent." Their position is what is called in the legal field stare decisis. Stare decisis is the principle that precedent should determine legal decision-making in a case involving similar facts. That is, judges should lean toward agreement with prior judges in similar cases. You don't want to undermine the judicial system, right? But stare decisis is not law; it is a preference. And all three justice nominees where careful with their answers. Do they see Roe as precedent? Yes. Does that mean they cannot overturn it? That was never asked, but clearly that answer must be "No." In fact, Amy Coney Barrett had written a law review article that referenced the concept of a "super-precedent," a ruling with such precedence that it would demand subsequent rulings agree. Sen Amy Klobuchar asked her if Roe was a super-precedent. Barrett said, "I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category."
All the candidates recognized Roe as precedent. Precedent is not law. None of them claimed they would not vote against precedence. In fact, we shouldn't want a judge who would refuse to examine the facts and arguments in a case simply because a prior judge made a ruling. We should hope that stare decisis was a factor in their considerations, but certainly not the sole factor. They made statements that would likely lead the pro-abortion questioners to believe that Roe would be safe under their watch, but they were all lawyers and all gave lawyer answers -- completely true ... but not necessarily the conclusion you expected.
Here's what is disturbing to me. The almost single issue at stake in all three confirmation hearings was not ability or character; it was abortion. These congressional interrogators weren't looking for someone who would make rulings constitutionally, legally, or even wisely. They were looking for judges who would rule as they wanted them to. It was illegal for them to ask, "How would you rule?", but they sure tried. The highest concern of these agents of our democracy was not justice or law; it was the uninterrupted right to kill babies. To me, they carried out an interrogation under false pretenses and, in their own way, lied to the public doing so. They are not unimpeachable. (Before jumping to conclusions about what I just said, look it up.)
6 comments:
The problem with this litmus test is that it essentially boils down to demanding that a nominee tell the committee how they would rule on a case regarding abortion if it comes before them. This would require that the nominee tell the committee how they would rule on a case without knowing the facts of the particular case, which seems foolish on it's face. Further, such an answer would bar the nominee from ever presiding over a case on that subject. Clearly the DFL would love a SCOTUS where they'd forced conservative justices to recuse themselves, but that's not really effective. Any judge who'd them the answer they want would be unfit for service. These judges are the top 5% of judges in the country, they're not stupid enough to answer those gotcha questions in a way that leaves them open to negative consequences in the future.
This would be one more example of the DFL controlled congress wasting time on hearings instead of actually legislating.
Given the makeup of this congress, maybe wasting time on hearings instead of legislating isn't a bad thing.
If they're not stupid enough to answer these gotcha questions, is it stupid of our government leaders to ask them? I think so. Further, I'm pretty sure they (and most of the country) aren't smart enough to see that the nominees didn't lie; they dodged. Indeed, they couldn't (as you pointed out) answer the questions they were asking in the way they wanted them to be answered. So the leaders and the media will simply keep up the known false stream of "liars!"
Of course it's stupid for those on the committee to play those games. They know that the nominees are smart enough to answer without crossing any lines. The even stupider thing I'm seeing from the DFL is this obsession with changing the rules. Add justices to SCOTUS, get rid of the filibuster, impeach everyone for anything. Do they not understand that that'll work great until the next GOP president expands the court again, or a GOP majority uses their rules against them, etc. It seems like intelligence or ability to legislate are not required for legislators anymore.
Well, no, I don't think they do see that? We've watched it repeatedly. As the "minority" and "majority" sides change, the rules shift accordingly. The Dems fought vigorously for the filibuster when they were not the majority and then shot it down with malice when they were and now that it's closer numbers in the Senate they very clearly need to return to the filibuster. That kind of back-and-forth seems to at once be obvious and unnoticed. But, then, we, as a society, have jettisoned "standards," so "what suits me best at the moment is right at the moment."
Exactly. I just don't get it, but then I don't put all my value in lifelong membership in congress and the money and power that flows from that.
I am philosophically against term limits for congress,for what I think are good reasons. But then I see what these idiots are doing and how badly they've screwed things up and I'm willing to consider abandoning my principles and throwing them all out and starting over.
I'd encourage we all spend more time developing better arguments for what we believe, and from that imparting to others why an existing member of congress (can we call them MCs, like the Brits call theirs "MPs"? I think that would be cool) should remain or be voted out.
Anyway, the whole notion of stare decisis and precedent is wildly, if not intentionally, distorted to be regarded as beyond alteration. But those terms only serve as a guide for deciding current cases. In other words, what did previous courts do and why, and does what previous courts did mean we can't do something different. Ultimately, the answer is "no", because neither is law. It only affirms what the law is based on the previous rulings. That is, that's what is meant by "settled law"...it only means "that's what the law says" or how it is to be understood. It does not mean the law is etched in stone and therefore impossible to change.
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