Democrats and other leftists who were enraged this week when a draft opinion was leaked by someone inside the secrecy wall of the U.S. Supreme Court – indicating that Roe v. Wade could be struck down and abortion regulation returned to the states – have gone to extremes in their reaction.
Some want their own justices added to the court so the liberal agenda always holds a majority, a position that ignores the fact that conservatives, later in the majority, could do the same. Some have called the current justices “illegitimate,” despite the fact each member of the court, in turn, has obtained a nomination from a sitting president and approval from the existing Senate.
Still others have accused the current bench of committing “perjury” for their statements regarding Roe during their confirmation hearings.
But those claims, according to constitutional expert and popular legal commentator Jonathan Turley, are essentially nonsense.
In an online column, he explained that the “left” has focused “on calling out the justices in the majority for alleged ‘perjury’ or ‘lying’ in their confirmation hearings, particularly Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch.”
He said, “In reality, they did not lie in testimony in referencing Roe as established precedent. The suggestion of perjury is utter nonsense.”
One of the accusers, Sen. Susan Collins, R-Me., a Republican who often sides with the left’s agenda, “publicly decried what she claimed were false or misleading answers on Roe by Justices Alito and Kavanaugh,” he said.
Turley turned sarcastic, too, adding, “No less a legal figure as Stephen Colbert declared ‘They knew, that if they were honest, they wouldn’t get the job. So they lied, which I think is perjury. But what do I know? I’m no Supreme Court justice, I’m not a good enough liar.'”
In fact, Turley said, in hearings, “both Democratic and Republican nominees have largely stuck to rote responses on Roe and other cases to refuse to make such commitments. As Justice Ruth Bader Ginsburg famously insisted, there would be ‘no forecasts, no hints.'”
Turley pointed out the problem actually is that politicians have “selective auditory attention.”
“They hear what they want to hear. Indeed, confirmation hearings are highly choreographed on both sides. Each senator seeks to secure a thirty-second clip showing that he or she secured assurances or trashed a nominee. For pro-choice senators like Sen. Collins, it is essential to have some answer that would support a claim that, despite seemingly antagonistic judicial philosophical views, a nominee would not likely overturn Roe v. Wade and Planned Parenthood v. Casey,” he noted.
He said, too, that those charging “perjury” cannot cite the specific “perjurious language.”
He noted the charges against Alito, who had written as a Justice Department lawyer the Constitution does not contain a right protecting abortion.
When late Sen. Arlen Specter, R-Pa., asked him if he still agreed with that statement, Alito said, “Today if the issue were to come before me. The first question would be the question that we’ve been discussing and that’s the issue of stare decisis [Supreme Court precedent]. And if the analysis were to get beyond that point, I would approach that question with an open mind.”
Turley pointed out, “That says absolutely nothing but how every jurist approaches case precedent. You begin with the touchstone of stare decisis and the preference for preserving precedent. You then approach the countervailing question with ‘an open mind.'”
Gorusch was pressed on the question and said, “Senator … the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment.”
Likewise Kavanaugh was grilled, and pointed out the Supreme Court strives to preserve precedent.
The responses amounted to “verbal nullities,” Turley said.
“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.'”
And, he noted, leftist nominees have “used the same language” regarding gun rights cases during their hearings.
“No one called for perjury prosecutions or denounced them as liars,” he said.
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