Opinion: Did SCOTUS Nominees Lie During Their Confirmation Hearings?

The Veracity Report

Rumors have circulated that US Supreme Court Appointees have lied to Senate members during their confirmation hearings, we examine those claims for veracity

Image Courtesy of SCOTUS.gov

Author’s Note

This non-satirical, un-opinionated, fully attributed, and unbiased article was compiled by the accredited and degreed veteran investigative reporter Kurt Dillon and is comprised of information compiled from the following sources: Georgetown Law, The Washington Post, Politico, and The Congressional Research Service.

Recently, outspoken congress people have suggested that previous US Supreme Court nominees Kavanaugh and Gorsuch lied to Senators regarding their positions on the recently overturned 1973 decision in Roe during the pre-confirmation vetting process. To examine these claims for legitimacy, we need to first examine the minutiae of the vetting process all US Supreme Court nominees must endure in order to be confirmed.

To do that, we will consult documents authored by The Congressional Research Service, which intricately detail every aspect of the process and how it coincides with parameters as they laid out within the US Constitution, as well as other traditional practices which are not Constitutionally required, but which have been continuously repeated over so many decades as to have become accepted procedural standards.

We will also first draw upon this procedural guide authored by Georgetown Law called the Supreme Court Nominations Research Guide. Item number 4 in the enumerated list of processes states that at that point: “During the hearings, witnesses, both supporting and opposing the nomination, present their views. Senators question the nominee on his or her qualifications, judgment, and philosophy.”

This, while true, also leaves out the traditionally common practice of Senators who are both on the Senate Judiciary Committee and many who are not, personally and privately interviewing nominees prior to the Judiciary Committee positing their recommendation or lack thereof. Of significance, this is the point in the process where several Senators have alleged that nominees Gorsuch and Kavanaugh “lied” to them when questioned about their views on abortion and, more specifically, on how they would vote if and when a challenge to the landmark 1973 case were to arise during their time on the High Court.

This is most relevant in the case of Justice Brett Kavanaugh who was confirmed by the one of the narrowest margins in history, (50-48), and which was only made possible by the vote of Senator Susan Collins (D-ME). In this article by The Washington Post, it is suggested that Kavanaugh may have been deceptive in both his private meetings with Collins, as well as during his public confirmation hearings, where he was questioned numerous times about his beliefs regarding the half-century old SCOTUS decision in Roe.

The complete transcript of Justice Kavanaugh’s opening statement to congress is provided here, courtesy of Politico. In relevant part, while being questioned by various Senators about his position on the case, then nominee Kavanaugh repeatedly said that he considered Roe to be “established legal precedent.” He also mentioned that he is a firm believer in the Judicial practice of Stare Decisis, the latin legal term that means; “the legal principle of determining points in litigation according to precedent.”

It is because of these statements, and the perceived contradiction between them, and the fact that Kavanaugh voted with the majority in the controversial Dobbs v Jackson Women’s Health Organization – a decision which effectively reversed the almost 50-year-old decision in Roe – which has raised the ire of those who support freedom of choice for abortions in America.

Before we look deeper into that quagmire, it’s important to establish some background on the process that occurs once a potential Supreme Court Jurist is nominated for appointment to the bench, by The President of the Unites States. To do that, we will consult the following documents of The Congressional Research Service, that is, the branch of the legislature that specifically spells out the policies and procedures for virtually all Congressional legislative actions our Congress might encounter. In this case, we will first peruse the volume: Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee.

For the purposes of space, the entire 28-page chapter is provided through the above link. For our immediate needs, we will quote only the summary of that document, which somewhat briefly spells out the process and the stages within that process which are usually adhered to. It reads as follows:

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.
Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Specifically, the Judiciary Committee, rather than the Senate as a whole, assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee, and typically the committee conducts a close, intensive investigation of each nominee.
Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.
During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary Committee questionnaire, providing biographical, professional, and financial disclosure information to the committee. In addition to the committee’s own investigation of the nominee, the FBI also investigates the nominee and provides the committee with confidential reports related to its investigation. During this time, the American Bar Association also evaluates the professional qualifications of the nominee, rating the nominee as “well qualified,” “qualified,” or “not qualified.” Additionally, prior to hearings starting, the nominee pays courtesy calls on individual Senators in their offices, typically including some Senators who do not serve on the Judiciary Committee.
Once the Judiciary Committee completes its investigation of the nominee, he or she testifies in hearings before the committee. On average, for Supreme Court nominees who have received hearings from 1975 to the present, the nominee’s first hearing occurred 41 days after his or her nomination was formally submitted to the Senate by the President.
Questioning of a nominee by Senators has involved, as a matter of course, the nominee’s legal qualifications, biographical background, and any earlier actions as public figures. Other questions have focused on social and political issues, the Constitution, particular court rulings, current constitutional controversies, and judicial philosophy. For the most recent nominees to the Court, hearings have lasted for four or five days (although the Senate may decide to hold more hearings if a nomination is perceived as controversial—as was the case with Robert Bork’s nomination in 1987, who had 11 days of hearings).
Usually within a week upon completion of the hearings, the Judiciary Committee meets in open session to determine what recommendation to “report” to the full Senate. The committee’s usual practice has been to report even those Supreme Court nominations opposed by a committee majority, allowing the full Senate to make the final decision on whether the nomination should be approved. Consequently, the committee may report the nomination favorably, report it unfavorably, or report it without making any recommendation at all. Of the 17 most recent Supreme Court nominations reported by the Judiciary Committee, 15 were reported favorably, 1 was reported unfavorably, and 1 was reported without recommendation.”

Now that we understand how the process is supposed to work, at least in theory, we can delve a little deeper.

Page 4 of the Consideration of the Senate Judiciary Committee report we provided earlier, also explains what has come to be referred to as “courtesy calls.”

“Courtesy Calls
During the pre-hearing stage, the nominee, in accordance with long-standing tradition, visits Capitol Hill to pay “courtesy calls” on individual Senators in their offices. For Senators not on the Judiciary Committee, that may be the only opportunity to converse in person with the nominee before voting on his or her confirmation to the Court. Senators may use these meetings to gain firsthand impressions of the nominee and to discuss with the nominee issues that are important to them in the context of the nomination.”

While this practice does not specifically bar Senators from questioning nominees about their personal feelings regarding various legal precedents or their positions on cases with various ethical or moral implications, there is a well-established limit to the types of things they can discuss during these meetings—or at least, the types of things they can reasonable expect a nominee to answer—a concept that has come to be called: “The Ginsburg Rule” for reasons we will explain shortly.

To do that, we will need to look at another Congressional Research Service report. This one, entitled: Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue. Once again, this is a 28-page report, so we will only quote some small segments of it here, though the complete text is available by clicking the link above.

In the summary of this report, author Denis Steven Rutkus explains:

“In recent decades a recurring Senate issue has been what kinds of questions are appropriate for Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether, or to what extent, questions by committee members should seek out a nominee’s personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues.

This issue might be of particular relevance to the Senate Judiciary Committee as it prepares for the scheduled start, on June 28, 2010, of confirmation hearings for Supreme Court nominee Elena Kagan. For the nominee herself once contended, in a 1995 book review, that a Supreme Court confirmation hearing should focus not on “the objective qualifications or personal morality of the nominee” but on the nominee’s “substantive views.”

Such aims, she wrote approvingly, were achieved by the committee in the 1987 confirmation hearings for Supreme Court nominee Robert H. Bork. The Bork hearings, she said, presented to the public “a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction.” By contrast, “subsequent hearings,” she wrote, “have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

Also in her 1995 article, Ms. Kagan said that what “must guide” a decision on whether to confirm a person to be a Justice is a Senator’s “vision of the Court and an understanding of the way a nominee would influence its behavior.” Further, she said, if questioning on “substantive positions ever were to become the norm, the nominees lacking a publication record would have no automatic advantage over a highly prolific author.”

She emphasized, however, that she was not arguing “that the President and the Senate may ask, and a nominee must answer, any question whatsoever.” Some kinds of questions, she said “do pose a threat to the integrity of the judiciary”—for example, if a Senator “asked a nominee to commit herself to voting a certain way on a case that the court had accepted for argument” (Emphasis added).

In 2009, in testimony before the Judiciary Committee, as nominee to be Solicitor General, Ms. Kagan appeared to signal somewhat of a change in the views she expressed in 1995. In reply to a Senator’s question at the 2009 hearings, Ms. Kagan stated that, while the Senate, when questioning a nominee, “has to get the information that it needs,” the “nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests” (emphasis added).

This report also examines four recent Supreme Court confirmation hearings and provides excerpts of Senators asking, and nominees responding to, questions. It reveals a usual practice of nominees declining to respond to committee questions seeking their views about current legal or constitutional issues. Notable in this regard were the 1993 Supreme Court confirmation hearings for nominee Ruth Bader Ginsburg. In her opening statement to the Judiciary Committee, Judge Ginsburg articulated a limit on what the Senators could expect their questioning to elicit from her, stating she would be constrained, when responding to questions, from providing any “previews,” “hints,” or “forecasts” of how she as a Justice might cast her vote on issues coming before the Court: These limits subsequently came to be known informally as the “Ginsburg Rule,” standing for the principle—invoked frequently by later Court nominees—that nominees should not, in replying to questions from Judiciary Committee members, disclose their personal views or opinions on issues if there were a possibility the issues in the future would come before the Court (Emphasis added).

As we can see, it is not only a Judiciary tradition, but a highly expected practice for nominated High Court appointees to skirt directly answering questions regarding cases that they will undoubtedly be called upon to resolve at some future date, if confirmed. The fact that the practice is named after one of the most prolifically liberal justices to hold the position in recent memory, only adds more irony to the accusations swirling amidst today’s political tempest.

The bottom line? At no time did either Justice Kavanaugh or Justice Gorsuch declare while under oath that they would never vote to overturn Roe. What’s more, to provide any answer to such a question would have, in Justice Kagan’s own words, “compromise the integrity of judiciary.” Or, In the case of the deceased Justice Ruth Bader Ginsburg, and the “Ginsburg Rule”, “nominees should not, in replying to questions from Judiciary Committee members, disclose their personal views or opinions on issues if there were a possibility the issues in the future would come before the Court.”

Because of these facts, we at The Veracity Report, cannot see any scenario where either Justices Gorsuch or Kavanaugh lied under oath in the process of their conformations. If indeed something deeper and more specific were discussed behind the closed doors of any of their combined 132 “Courtesy Calls” with Senators prior to the beginning of the formal confirmation hearings, we will never know. However, even if we are to view the evidence in the light least favorable to the justices and assume that they did misrepresent themselves within any of those closed door meetings, we are still unable to reach the minimum evidentiary burden for a perjury conviction or an impeachment on the grounds of a “high crime or misdemeanor” since lying, unless under oath, is not a crime anywhere in the United States – even in the private office of a United States Senator.

As always, we here at The Veracity Report will never attempt to tell you what you should think or who you should believe. Our mission is, and always has been, to make sure our readers understand all sides of an issue, so that you can employ that knowledge, along with your own values and beliefs, into crafting your own highly informed and educated opinions regarding what, and perhaps more importantly, who to believe. We hope we have achieved that mission with this article.

Researched & Compiled by Investigative Reporter Kurt Dillon – Because the Truth Matters!

Copyright 2022 The Veracity Report

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