The belief of former Supreme Court candidates in Roe v. Wade as an “established law” is increasingly questioned

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WASHINGTON (AP) – Upon confirmation to the Supreme Court, Brett Kavanaugh convinced Senator Susan Collins that he believed a woman’s right to abortion was “established law,” calling the court cases the claiming from “precedent over precedent” that could not be overturned by chance.

Amy Coney Barrett told senators during her Senate confirmation hearing that laws cannot be overturned simply by personal beliefs, including her own. “It’s not Amy’s law,” she joked.

The disconnect raises questions about the substance, purpose and theater of the Senate confirmation process. And it creates tense politics for Senate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska, who have long supported abortion rights and have asked for assurances that Supreme Court candidates were not predisposed to cancel them.

But in this month’s landmark Supreme Court hearing on a Mississippi law that could restrict or even end a woman’s right to abortion, the two new justices took a distinctly different tone. , charting issues widely seen as part of the court’s drive to dismantle decades-old decisions on access to abortion services.

The disconnect raises new questions about the substance, purpose and theater of the Senate confirmation process which some say is in serious disarray. And it creates tense politics for Collins and another Senate Republican who supports abortion rights, Senator Lisa Murkowski of Alaska, as the nation grapples with the potential fraying of the law.

“I support Roe,” Collins said as she rushed into an elevator shortly after Wednesday’s arguments in court. The Maine Republican voted to confirm Kavanaugh but objected to Barrett’s nomination as being too close to the 2020 presidential election.

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Murkowski declined a hallway interview Thursday on Capitol Hill and did not provide further public comment. She opposed Kavanaugh and backed Barrett, the two most closely confirmed candidates in the divided Senate.

The court’s ruling in the Mississippi case may not be known until June, but the fallout from the week’s arguments reignites concerns that the judiciary, like other civic institutions across the country, is becoming deeply politicized and that Congress – especially the Senate – must do better in its constitutional role of advising and consenting on presidential candidates.

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“It’s not as if senators were naive and over-trusted,” said Neil Siegel, a law professor at Duke University who served as special adviser to the Senate Democrats, including when Joe Biden was a senator. . “I think the main problem is that we are deeply polarized, and the Constitution makes the appointment and confirmation of federal judges, including judges, a political process.”

Confirmation hearings before the Senate Judiciary Committee are intense, multi-hour sessions that typically last for days as one senator after senator grids the president’s nominees on their approach to the law.

Kavanaugh’s hearing in 2018 exploded amid startling allegations he sexually assaulted Christine Blasey Ford as a teenager at a house party near Washington, DC, he claims denied .

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A slew of states recently passed legislation to restrict access to abortion, but a new WSJ / NBC News poll shows support for legal abortions has increased. Gerald F. Seib of the WSJ explains. Photo: AP

Debates over abortion were at the center of the confirmation hearings, but senators focused on Republican Donald Trump appointing three Tory judges during his four-year presidential term, potentially pushing the court away from nine. members of the centrists and liberals.

Suddenly what had been long debates over the legal precedents set by the historic Roe v. Wade and Planned Parenthood v. Casey became very real issues for American women as Republicans achieved the long-sought goal of rolling back access to abortion.

Kavanaugh has repeatedly told senators under the grill of Democrats and Republicans that women’s right to abortion has been upheld.
“The Supreme Court has recognized the right to abortion since Roe v. Wade of 1973 – has said it many times, ”he told Senator Lindsey Graham, RS.C.

To Senator Dianne Feinstein, then a leading member of the Senate Judiciary Committee, Kavanaugh stressed “the importance of precedent” under previous court rulings and a “woman has the constitutional right to have an abortion before birth. viability “, referring to the 24 weeks of pregnancy now called into question by 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 this week’s hearing, Kavanaugh read a long list of court cases that overturned precedents and wondered why the court couldn’t now do the same with abortion.

“If you think of some of the most important cases, the most important cases in the history of this tribunal, there is a series where the cases set aside the previous one,” he said.

Kavanaugh said during the court hearing that the abortion debate is “difficult” and perhaps the court should leave it to the states to decide – essentially ending federal protection.

Senators said judges could simply submit a series of questions, forcing state and federal lawyers to respond, rather than reflecting their own reading of the law.

But Senator Amy Klobuchar, a Democrat from Minnesota, who had intense interactions with Kavanaugh and Coney Barrett during the Confirmation Battles – and voted against both – said what she heard from the court was about what she expected. “I’m not at all surprised,” Klobuchar said.

Barrett had told senators that Roe v. Wade did not fall into the category of “superprecedents,” described by lawyers as matters so settled that there are no appeals to reconsider them.

Yet, as a conservative Christian, she has insisted that her own opinions play no role. “It’s not Amy’s law,” she told senators. “It is the law of the American people.”

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Last week Barrett urged lawyers to explain why women couldn’t just give up their babies for adoption now that shelter laws exist in the states. “Why haven’t you covered the shelter laws and why don’t they matter? “

Asked about the mismatch between Senate hearings and court arguments, Sen. Richard Durbin, an Illinois Democrat who is now chairman of the Judiciary Committee, admitted the hearings had their limits but declined to judge until the court renders its decision.

Perhaps not since Ruth Bader Ginsburg told senators during her own confirmation hearing in 1993 that the decision to bear a child is “at the heart of a woman’s rights, of her dignity,” have the candidates. was also candid about their views. The norm is now for candidates to keep their views close.

“We cannot ask for affidavits,” Durbin said. “I believe the person and their life experience are more predictive of the outcome of future affairs than any statement they make to a committee.”

Republican Senator John Cornyn of Texas, a former judge, ignored the difference between what is said in committee hearings as a fact of political life.

“I’ve seen too many confirmation conversions, where people are basically rejecting things that they have done and said in the past in order to be confirmed, but once someone is confirmed there is little we can do about it. do, “said Cornyn, who voted to confirm both Kavanaugh and Barrett.

“I don’t think they are a sham,” he said. “I think there are some useful discussions, but there is obviously no consequence associated with voting in a way different from what you said in the hearing.”

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