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Opinion If Kavanaugh and Gorsuch lied in their confirmations, so did Kagan

Supreme Court nominee Brett M. Kavanaugh appears during a confirmation hearing at the Hart Senate Office Building on Sept. 5, 2018, in D.C. (Matt McClain/The Washington Post)
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During Elena Kagan’s 2009 confirmation hearings for the office of solicitor general, Sen. John Cornyn (R-Tex.) asked her point-blank: “Do you believe that there is a federal constitutional right to same-sex marriage?” She replied with one sentence: “There is no federal constitutional right to same-sex marriage.”

The following year, when President Barack Obama nominated her to become an associate justice of the Supreme Court, and conservatives tried to paint her as a guaranteed vote for same-sex marriage, her supporters pointed to this answer as proof that any concerns were unfounded. She was confirmed 63 to 37. But when she got to the high court, she voted in Obergefell v. Hodges to find that there is, in fact, a constitutional right to same-sex marriage.

Did Kagan lie?

No. As she explained in a March 2009 letter to then-Republican Sen. Arlen Specter (Pa.), she was simply describing the state of existing case law, which did not at the time recognize a federal constitutional right to same-sex marriage. “Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives,” Kagan wrote. “By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.”

This history is worth recalling as some on the left now argue that members of the court’s conservative majority should be impeached for lying during their confirmation hearings about whether Roe v. Wade could be overturned. “Every single one of them said under oath that they would actually preserve Roe,” claimed Sen. Kirsten Gillibrand (D-N.Y.). “That is absolutely fraud, and there should be consequences.” On “Meet the Press” this past weekend, Rep. Alexandria Ocasio-Cortez (D-N.Y.) called for a House investigation into whether Brett M. Kavanaugh and Neil M. Gorsuch should be impeached. “They lied,” Ocasio-Cortez said. “I believe lying under oath is an impeachable offense.”

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In fact, none of the conservative justices promised to uphold Roe. Indeed, if they had done so — if they had promised to vote a certain way in a case in exchange for something of value, a senator’s vote — that would be an impeachable offense. It would be a serious violation of judicial ethics for a nominee to the federal bench to say how they would vote in a case before hearing the facts and evidence. As Ruth Bader Ginsburg explained during her 1993 confirmation hearings, “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.” Ginsburg added, “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Of course, none of the justices did that. Kavanaugh explicitly declined to directly answer whether Roe was “correct law,” but he said, “Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. … So that precedent on precedent is quite important as you think about stare decisis in this context.” Gorsuch similarly declared that Roe “is a precedent of the U.S. Supreme Court. It has been reaffirmed. … So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

This is similar to what Kagan said during her July 2010 Supreme Court confirmation hearing, when she was asked whether she agreed that the court’s rulings in District of Columbia v. Heller and McDonald v. Chicago mean that the Constitution guarantees a fundamental right for an individual to own a firearm, particularly for self-defense. She replied that Heller and McDonald are “settled law” and “binding precedent entitled to all the respect of binding precedent in any case.” But last week, in New York State Rifle & Pistol Assoc. v. Bruen, she voted to uphold New York’s draconian gun law, which required anyone who wanted a license to carry a concealed handgun outside the home to show “proper cause” for doing so.

If Gorsuch and Kavanaugh deceived the Senate, then so did Kagan. And if Gorsuch and Kavanaugh should be impeached, then Kagan should be as well.

In fact, none of them lied — not Gorsuch, not Kavanaugh, not Kagan. It is perfectly understandable for senators to try to divine how a justice, if confirmed, would rule on a case they care about. But it would be a gross dereliction of judicial ethics for a nominee to prejudge a case or give senators any assurances of how they would decide. Which is why they all follow the “Ginsburg rule.” And there is nothing impeachable about that.

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