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Left-wing calls to impeach anti-Roe justices unwarranted, legal experts say

Washington Examiner logo Washington Examiner 6/30/2022 Kaelan Deese
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In the face of calls by some liberal lawmakers to impeach Republican-appointed Supreme Court justices who testified that the 1973 case Roe v. Wade was "settled law," legal experts indicate such testimonies don't amount to an instance of perjury, even if they are "misleading."

Rep. Jamaal Bowman (D-NY) on Tuesday became the latest among a handful of Democratic lawmakers to call for either the impeachment or investigation of several Supreme Court justices who previously testified during their confirmation hearings that Roe and the 1992 Planned Parenthood v. Casey were "settled law." Such claims have been levied since the high court's 5-1-3 decision on Friday to overturn Roe and allow states to impose laws severely limiting or restricting abortion access.

"I’m calling for Clarence Thomas and every Supreme Court Justice who lied under oath to be impeached," Bowman tweeted, posting a video of himself delivering a fiery speech to a group of cheering supporters in which he asserted that "at least three" justices among the high court's 6-3 conservative supermajority lied under oath.

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Despite such calls to punish Republican-appointed justices for their testimony as nominees, justices have used "exactly the same language" or legal terminology when questioned over precedent established under previously decided cases, according to Thomas Jipping, a deputy director of the Edwin Meese III Center for Legal and Judicial Studies, who pointed to similar language used by the high court's liberal justices.

"There's no way the Democrats would have supported Sonia Sotomayor and Elena Kagan if they thought that the word 'settled' meant that Sotomayor or Kagan would never consider overruling Citizens United or D.C. v. Heller," Jipping told the Washington Examiner, referring in part to Kagan's July 2010 hearing in which she said previous cases that determined gun bans violate the Second Amendment are “settled law” and are "entitled to all the respect of binding precedent."

Wayne Cohen, law professor at George Washington University School of Law, told the Washington Examiner the root of determining whether allegations of perjury hold water is to "really look at the words that were stated during the confirmation hearings."

"The devil's in the details," Cohen said, adding, "They may have been misleading, potentially, but perjury is a whole other thing."

Rep. Alexandria Ocasio-Cortez (D-NY) was one of the first to ignite the latest round of impeachment calls during an interview on NBC's Meet the Press on Sunday, two days after the high court's overturning of Roe and Casey. She was joined in her demands by fellow "Squad" member Ilhan Omar (D-MN), who tweeted, "We need an impeachment investigation into Clarence Thomas’s role in the January 6th coup," along with the testimonies of Justices Neil Gorsuch, Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh during their respective Senate confirmation hearings from years prior.

Here is what the subjects of left-wing allegations had to say about the precedent of Roe and Casey during their Senate confirmation hearings:

Samuel Alito

Alito wrote the majority opinion deciding Dobbs v. Jackson Women's Health Organization, which upheld Mississippi's law banning abortions after 15 weeks of gestation and paved the way for allowing states to impose laws limiting or restricting abortion procedures.

In his 2006 hearing, Alito called Roe an "important precedent" but stopped short of deeming it "settled law." He also would not clarify the case as something that could not be revisited, noting it had been "challenged on a number of occasions."

Despite his response in the hearing, his views about abortion had been on the record since 1985. When he applied for a job at the Justice Department, he wrote in a cover letter that his experience as a “life-long registered Republican” made him “proud” to have overseen cases that posited “that the Constitution does not protect a right to an abortion.”

Neil Gorsuch

During his 2017 confirmation hearings, Gorsuch called Roe “a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases.” Gorsuch was referring to Casey, the case that reaffirmed the central holding of Roe but ruled states may not prohibit abortions before fetal viability, the point at which a fetus could survive outside the womb, which is estimated at around 23 weeks.

Brett Kavanaugh

In Kavanaugh's 2018 confirmation hearings, he said he didn't "get to pick and choose which Supreme Court precedents I get to follow," adding that he “follow[s] them all."

“I said that it’s settled as a precedent of the Supreme Court entitled to respect under principles of stare decisis, and one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years,” Kavanaugh said, responding to whether he thought Roe was settled law.

Amy Coney Barrett

Barrett perhaps gave the most veiled response during her 2020 confirmation hearings, due in part to a resurfaced 2006 ad from the St. Joseph County Right to Life group showing she and her husband had signed on to a statement in favor of a "right to life."

During the hearings, she pledged to “follow the law of stare decisis” and respect court precedents if abortion-related cases came before her, though she did not explicitly say she would not vote to overturn Roe or Casey.

Clarence Thomas

Thomas did not expressly speak on his view of precedent under Roe during his 1991 confirmation hearings. Rather, he argued he had "no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion."

But it was Thomas himself who made the most boisterous calls against abortion precedent once he made it to the high court, arguing in a 2020 dissenting opinion that the court's “abortion precedents are grievously wrong and should be overruled.”

While more Democratic lawmakers may call for high court justices to face consequences for allegations of going against testimony, numerous legal experts say the allegations are unlikely to result in any significant outcome or punishment.

"To me, their careful lawyerly phrasing was itself a demonstration that they were prepared to overturn Roe," Northeastern University law professor Dan Urman told the school's news publication this week. "If they were not, then they could have given a more direct and less careful answer."

“I don’t think any of them committed perjury in the technical legal sense of the word because they stayed general enough, and descriptive enough, of the law at the time they were nominated,” Urman added.

Sens. Joe Manchin (D-WV) and Susan Collins (R-ME), who were key swing votes in the confirmations for Gorsuch and Kavanaugh, released separate statements following the Dobbs ruling that expressed disappointment over the ways the pair of justices ruled and added that they felt misled given their statements in confirmation hearings.

Feeling misled by two of former President Donald Trump's appointees, Manchin said he was "alarmed they chose to reject the stability the ruling has provided for two generations of Americans."

“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” Collins said in a similar statement.

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Congress maintains the authority to impeach members of the Supreme Court, though it has only been tried once, more than 200 years ago.

The only high court justice to have been impeached was Justice Samuel Chase in 1805 for conduct on the bench that was deemed overly partisan. He was subsequently acquitted by the Senate.

 

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Tags: Supreme Court, Roe v. Wade, Dobbs v. Jackson Women's Health Organization, Alexandria Ocasio-Cortez, Jamaal Bowman

Original Author: Kaelan Deese

Original Location: Left-wing calls to impeach anti-Roe justices unwarranted, legal experts say

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