Sen. Lisa Murkowski will be attacked for having relied on the sworn testimony during confirmation hearings and face-to-face conversations with Supreme Court nominees. Although I opposed the confirmations, I cannot join in attacking her. Until now, I believe most attorneys would not have believed that nominees for the Supreme Court would lie under those circumstances. You could assume that a federal judge had respect for the oath and the court if anyone did.
Discovering that this isn’t true strikes at the foundation of our legal system, perhaps in a way that non-attorneys cannot grasp. Publication of the draft opinion was a shock. The purpose is now unknown, and at this point could as easily have been to solidify votes for its analysis and conclusion rather than to stir opposition. What judge will alter their position due to public outcry?
I have not had time to digest the draft, but the tone and disrespect for the analyses by prior courts is unprecedented and disturbing. I believe that this is the first time any constitutional right has been eliminated rather than limited in its application to a set of facts. At this point I have to speculate, but I expect to find that the opinion relies on the societal norms embodied in laws and analysis dating from a time when slavery was accepted, women and men who didn’t own land could not vote, and even when witches were being burned.
Our history has been one of struggles with issues resulting largely in the expansion of rights by legislation or by court decision. This is a step backward and provides a base for additional rollbacks of constitutional rights under the guise of correcting error.
After this, how can anyone trust the confirmation process? It has been revealed that it can be manipulated and corrective action is only available if 60% of the Senate will support the impeachment process.
Disclosure of the draft opinion has only brought this to the surface earlier than publication of the final opinion. I lean toward believing that the leak occurred to nail down votes for the conclusion and avoid defections based on the analysis.
— Peter Crosby
Anchorage
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