When the Supreme Court voted to overturn Roe v. Wade this summer, they were only able to do so because multiple justices had lied their way onto the court in the first place. During their confirmation hearings, those justices told Congress that they would not overturn Roe, that they respected the case as “settled law.” We knew those were lies as they were being said, even if certain senators (*cough* Susan Collins *cough*) chose to feign naiveté.
The late Democratic senator Ted Kennedy had no patience for those kinds of lies, even long before the days of Kavanaugh and Coney Barrett. A new biography out today includes portions of Kennedy’s diaries, which detail Kennedy’s distrust of Justice Samuel Alito during Alito’s 2005 Senate confirmation.
Just like the conservative justices that came after him, Alito was asked about his thoughts on Roe during his confirmation hearings and just like those other justices, he claimed to respect the ruling. “I am a believer in precedents,” Alito said, as recalled in Kennedy’s diary. “People would find I adhere to that.”
Of course, Alito did not adhere to that. He wrote the majority opinion for Dobbs v. Jackson WHO, the case that overturned Roe as well as Planned Parenthood v. Casey. In that opinion, he wrote that he believed “Roe was egregiously wrong from the start.”
During Alito’s confirmation, Kennedy brought up a memo Alito had written two decades earlier, when he was a DOJ lawyer in the Reagan administration. The memo stated his opposition to Roe but he swore to Kennedy that he was just writing what he thought his bosses wanted to hear, what would earn him a promotion. He said he’d “matured a lot” since then.
Writer John A. Farrell, the author of the new biography, wrote in a New York Times piece ahead of the book: “The answer did not assuage Mr. Kennedy, who went on to vote against Judge Alito’s confirmation. If the judge could configure his beliefs to get that 1985 promotion, Mr. Kennedy asked in a notation in his diary, how might he dissemble to clinch a lifetime appointment to the nation’s highest court?”
That seems like a pretty obvious question! It would be nice if more members of Congress (of both parties) would remember that they’re allowed to push back on these nominees and use basic critical reasoning skills. They are under no obligation to just take them at their lying word.
Farrell recalls a speech Kennedy gave two years before his death in 2009 that summed up the con these conservative justices keep pulling. In that speech, Farrell writes, “he assailed the performance of judicial nominees who ‘worked hard to give the impression of moderation’ and ‘assured us that they would not bring an ideological agenda to the bench,’ only to ‘reveal themselves as ideologues” once confirmed.”
This is nothing new. Kavanaugh didn’t invent this grift when he “misled” Susan Collins, as she herself claimed afterward. Kennedy is a complicated figure but I would like to personally buy Collins a copy of this book because clearly she could learn a lot from it (if she wanted to, which we know she doesn’t, so never mind, I guess).
(via NYT, image: Anna Moneymaker/Getty Images)
