When an evasion is really, dangerously, a lie
Supreme Court nominee Brett Kavanaugh’s dance around the question of whether he would overrule Roe v. Wade makes one wonder, on what other matter has one of his evasions, stripped of legalistic nuances, amounted to a lie.
Certainly Kavanaugh’s dodge around the Roe issue, that Roe is “settled law,” thus implying it was immune to being found unconstitutional by the Supreme Court, is a lie. This was the the lie told to Republican Senator Susan Collins of Maine, a staunch supporter of Roe v. Wade, in what she characterized as a lengthy one-on-one discussion. She reported that Kavanaugh said he regarded Roe as “settled law.”
As one commentator on MSNBC or CNN (sorry I forget which, and who) quipped: “Well, settled law is settled until it isn’t.”
Now, thanks to the recent release of an email heretofore kept under Republican Senate Judiciary Committee wraps as “committee confidential,” we find Kavanaugh, back in 2003, saying “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the Supreme] Court can always overrule its precedent, and three current Justices on the Court would do so.”
The emphasis on “at the Supreme Court level” is mine, to draw attention to the key point of Kavanaugh’s prevarication with Senator Collins and others. In answer to today’s question in the hearing, as to what he meant by the statement in his email, he found yet another dodge: he maintained he was referring then to some generic “legal scholars” with whom he might or might not agree.
Give me an Effing break. What Kavanaugh was saying in 2003, (it happened to be in support of a nomination of another extremely conservative judge to a U.S. Court of Appeals), was, as the commentator on cable news noted, settled law is settled law until it isn’t—and the ultimate arbiter of what remains settled law or not, is the very same Supreme Court to which Kavanaugh has been nominated. And there is little doubt that Kavanaugh’s personal position on Roe v. Wade is that it should be overturned or severely modified.
(For the Washington Post’s coverage of this aspect of Kavanaugh’s conduct, see Kavanaugh caught out in evasion , and the link within it that points to the email at issue. The latter is somewhat difficult to read, but the key sentence is in there.)
When people in high places bend the truth, mistrust of our leaders and institutions follows
These days, on account of the utter mendacity of the current President of the United States, our outrage over spectacularly egregious lies tends to dull our attention to quieter, less obvious lies. We are tempted to give subtle liars like Brett Kavanaugh the benefit of the doubt—maybe he is really committed to following the precedent of Roe at the Supreme Court level, and maybe his comments back in 2003 were of a generic, academic kind. (I believe few of my readers would swallow this, but it may persuade those who have been swayed by the pronouncements of many in the law and justice community, that Kavanaugh’s behavior on the bench is above reproach.)
Problem is, even a small lie by someone in as high a place as the U.S. Supreme Court, can have grave consequences that reverberate throughout the whole of society.
We all lie about one thing or another. Some of our lies go into darker places and are more consequential than others, but few among us ever tell truly dark and consequential lies.
Kavanaugh’s lie about Roe v. Wade is enormously consequential to women’s reproductive rights, and is very dark if you do believe those rights are inseparable from human dignity and human welfare.
Kavanaugh’s role as shield-bearer for the ruling class is made the worse by his dishonesty on as consequential a matter as Roe v. Wade. In fact, even if he were eventually to vote to preserve Roe, that doesn’t change the fact that he has lied to a U.S Senator, when he led her to believe his term “settled law” applied to all levels of the judiciary, when his view has really been, that at the Supreme Court level, “settled” is a shaky proposition.
This is, of course, about much more than Brett Kavanaugh. The fact that Republican leadership attempted to smother uncomfortable facts about Kavanaugh under the cloak of “committee confidentiality,” is yet more proof of how little trust we can put in the processes by which our laws are made, Presidential appointments are confirmed, and legislative hearings are conducted. Having the levers of power put in the hands of persons as unscrupulous and amoral as Senate Majority Leader Mitch McConnell gives force to the “Drain the Swamp” outcry. Unfortunately, it looks like we are about to have a Supreme Court that stoutly Defends the Swamp for decades to come.
Mistrust of our leaders and institutions is nothing new. But it is growing, on both the political left and the right. Such a debacle as the Kavanaugh appointment deepens the mistrust. Where it will stop, nobody knows.