The Washington Post - USA (2022-05-08)

A6 EZ RE THE WASHINGTON POST.SUNDAY, MAY 8 , 2022

supreme court

A leaked draft

opinion from the

Supreme Court on

abortion rights

revealed a new

truth about the confirmation

fights over these lifetime

appointments.

The public hearings, with the

nominee testifying usually over

three days, have become overly

rehearsed matters that mostly

provide moments for the

senators to appeal to political

activists. Instead, the most

critical moments for prospective

justices often come in the dozens

of private huddles they hold with

senators.

The routine has become

standard: The nominee will be

surrounded by a team of White

House aides ushering him or her

around the Capitol for meetings

with key senators. These

meetings are not technically one-

on-one, as a few aides each for

the senator and White House are

present, but the talking is almost

exclusively left to two people.

The rest take notes.

Those meetings, usually

lasting at least an hour, provide

the basis for most of the

questions that senators on the

Judiciary Committee will ask at

the public hearings, but many

senators view these initial

comments as more revealing.

“A one-on-one meeting, or a

meeting that is not in the klieg

lights of the confirmation

process, is your best chance to

get a real feeling for somebody,”

said Sen. Christopher A. Coons

(D-Del.), who just finished up his

fourth Supreme Court

nomination with last month’s

confirmation of Justice-

designate Ketanji Brown

Jackson.

Even Judiciary Committee

members realize that there are

only a handful or so of genuine

swing votes for most

nominations to the high court,

and none of those undecided

senators sit on the committee —

which makes their meetings with

the nominee so pivotal.

“For the senators not on

Judiciary, who are not going to

be spending three days listening

to that nominee, it is probably

more important and more

revealing,” said Sen. Richard

Blumenthal (D-Conn.), a

committee member who also has

gone through four Supreme

Court confirmations.

These meetings came back

into focus with Politico’s Monday

night report of the draft majority

opinion that, if it holds up,

would overturn the 1973 Roe v.

Wade decision providing

abortion rights. Supporters for

the draft included Justices Neil

M. Gorsuch and Brett M.

Kavanaugh, which key senators

say would not be consistent with

statements they made during the

confirmation process.

“It would be completely

inconsistent with what Justice

Gorsuch and Justice Kavanaugh

said in their hearings and in our

meetings in my office,” Sen.

Susan Collins (R-Maine) said in a

statement issued early Tuesday.

“It’s rocked my confidence in

the court. And that is because I

think there was representations

made with regards to precedent

and settled precedent. That

comments were made to me and

to others about Roe being

settled,” Sen. Lisa Murkowski (R-

Alaska) told reporters Tuesday.

Collins provided what is

considered the difference-

making vote for Kavanaugh,

while Murkowski opposed his

nomination based on his

intemperate behavior toward

senators at follow-up hearings to

consider sexual assault

allegations against him dating to

when he was in high school.

Kavanaugh has denied the

accusations.

Both moderate Republicans,

who are generally supportive of

abortion rights, gave floor

speeches before the Kavanaugh

vote saying he reassured them

privately he would not vote to

overturn the Roe decision. In

spring 2017, before voting to

confirm Gorsuch, Collins said

she specifically asked him “if five

current justices” could overturn

“a long-established precedent” if

they considered it wrong.

“Emphatically no,” Gorsuch

responded, according to Collins’s

recollection of the private

meeting.

Now, five current justices

appear poised to overturn a 49-

year precedent, which was

upheld again in 1992, leaving

some senators and aides

combing through their notes of

those meetings with recently

confirmed justices.

By the time Supreme Court

nominees reach their public

hearings, they will have spent

days undergoing “murder board”

sessions in which dozens of

White House aides ask them

tough questions and prep them

to answer without causing any

controversy.

That’s why those early

meetings with one senator at a

time can be make or break.

In 2005 one Supreme Court

aspirant practically lit her

nomination on fire during a

meeting with Arlen Specter (Pa.),

then the Republican chairman of

the Judiciary Committee.

Specter walked out of meeting

with Harriet Miers, who had

little training in constitutional

law and no paper trail on hot-

button issues, and told reporters

that she saw the Griswold v.

Connecticut case as “rightly

decided.” Conservatives revolted

because that 1965 ruling

provided a right to privacy and

became the foundation for Roe

and other reproductive rights

cases.

The nominee called the

chairman to complain that he

had misrepresented her views.

That went over terribly. Specter,

a moderate, spent the next week

publicly criticizing Miers, and

she soon withdrew from

consideration.

Blumenthal had a high-profile

moment with Gorsuch in

February 2017, asking the

nominee if he thought it was

terrible how then-President

Donald Trump liked to publicly

criticize judges.

“He said, in effect, yes, and I

went out and I said what he told

me,” Blumenthal recalled.

Gorsuch’s White House handlers

confirmed the remarks, but it

was later revealed that Trump

blew up upon learning his own

nominee criticized him.

Coons said he usually begins

each session with the “get to

know you stuff” about the

nominees’ personal background,

before trying to focus on four or

five legal topics.

He will eventually drill down

on one key topic and tell the

nominee that will be “the

hardest question” he asks during

the public hearings.

“Kavanuagh was probably the

most intellectually agile and

engaged. Meaning, we got into a

really thorough, very rapid back

and forth about unitary

executive theory and about his

writings on that,” Coons said of

his private discussion over the

justice’s views on executive

power.

These meetings are never

recorded, but Coons, as other

senators and staff said, keeps

very detailed notes.

Collins relishes her reputation

as being meticulous with the

nominees behind closed doors.

For weeks during the Kavanaugh

confirmation, she carried around

a massive binder of his writings,

reminding reporters that she had

consulted 19 lawyers about his

record. She sat down with him

for more than two hours and

then had a follow-up call that

lasted more than an hour.

In her 2018 speech

announcing her support, Collins

went into great detail about how

Kavanaugh told her Griswold

was “settled law” and that the

1992 abortion ruling provided

Roe the elevated stature of

“precedent on precedent.”

She asked Kavanaugh almost

the exact same question that she

presented to Gorsuch. “When I

asked him would it be sufficient

to overturn a long-established

precedent if five current justices

believed it was wrongly decided,

he said emphatically no,” Collins

said in October 2018.

Murkowski declined in recent

days to recount the details of her

discussion, but she told reporters

that she covered similar ground

with Kavanaugh and other

nominees.

“Did I have conversations

about how he defines what is

settled, what is precedent? Yeah,”

Murkowski said. “I do that with

every judge that I’ve had the

opportunity to sit with.”

Despite their outrage over the

draft ruling, neither Collins nor

Murkowski has indicated what

they will do if the final ruling

looks similar. Will they release

transcripts of their private

meetings? Will they call for

hearings about these private

talks?

Blumenthal, for one, still finds

value in these private meetings,

more than the overly rehearsed

public hearings.

“Anyone who’s sitting at a

lectern, in front of the Judiciary

Committee, is going to be more

buttoned up,” he said.

In confirming Supreme Court justices, private senator meetings trump hearings

@PKCapitol

PAUL KANE

JABIN BOTSFORD/THE WASHINGTON POST

Sen. Susan Collins (R-Maine) said overturning Roe v. Wade “would be completely inconsistent” with

what Justices Neil M. Gorsuch and Brett M. Kavanaugh told her during their confirmation processes.

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