Senators report mixed signals from SCOTUS nominee Kavanaugh on Roe v. Wade
WASHINGTON, D.C., August 22, 2018 (LifeSiteNews) – As Judge Brett Kavanaugh continues to meet with senators who will decide whether he joins the U.S. Supreme Court, two influential lawmakers have walked away with very different conclusions as to how he would vote on abortion.
President Donald Trump nominated Kavanaugh, a District of Columbia circuit judge, in July to replace the retiring Justice Anthony Kennedy. Trump’s second nominee to the nation’s highest court has become a major lightning rod based on pro-lifers’ hopes and abortion advocates’ fears that he may provide the long-awaited fifth vote to overturn Roe v. Wade and allow Americans to vote directly on whether abortion should be legal.
Kavanaugh quickly won the endorsements of several pro-life groups, including the National Right to Life Committee and Susan B. Anthony List, which already announced plans to mobilize grassroots activists to “urge the Senate to swiftly confirm Judge Kavanaugh.” Others have encouraged caution because his constitutional views on abortion aren’t publicly known.
Sen. Susan Collins of Maine, a pro-abortion Republican who is seen as one of the make-or-break votes, met with Kavanaugh for two hours on Tuesday. Afterward she released a statement suggesting she was confident he would let Roe stand.
Collins said she was “pleased to learn that Judge Kavanaugh believes, as I do, that Article III of the Constitution was intended to include the concept of precedent and that he sees precedent as much more than simply a matter of practice and tradition.” She also said Kavanaugh “expressed agreement with Chief Justice Roberts’ confirmation hearing statement that Roe is settled precedent and entitled to respect under principles of stare decisis.”
In 2005, John Roberts told the Senate Judiciary Committee that “it's not enough that you might think the precedent is flawed to justify revisiting it,” that Roe is “settled as a precedent of the court, entitled to respect under principles of stare decisis,” and that it was “a little more than settled” because it “was reaffirmed” by Planned Parenthood v. Casey. Roberts went on to vote twice to save Obamacare, raising further doubts among originalists that he would vote to overturn Roe.
"The conversation was cordial, it was direct, but unfortunately Judge Kavanaugh refused to answer even the most basic questions about his jurisprudence and judicial philosophy," Schumer claimed. “He would not give me any reassurance that he believed Roe or Casey were correctly decided or should be left alone.”
Schumer specifically disputed the notion that Kavanaugh’s references to “settled law” and precedent meant he was on Roe’s side.
“Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same as saying a case was correctly decided. It’s no different than the typical judicial dodge of saying you respect stare decisis,” he said. “Time and time again, judges nominated to the Supreme Court by Republican presidents have told the Senate they would follow the law of judicial precedent, only to overturn it once they’re on the bench.”
It’s unclear how Kavanaugh would apply his reported statements on the bench, or whether he is phrasing his answers to satisfy the sensibilities of senators who could cast the deciding vote for his confirmation. His thin record of abortion-related statements and rulings does not offer a conclusive answer to the question, but the closest is a 2017 speech he delivered on the jurisprudence of the former Chief Justice William Rehnquist.
Calling Rehnquist “my first judicial hero,” he cited among several examples of the late judge’s reasoning his opposition to Roe. Kavanaugh said, seemingly approvingly, that Rehnquist found a right to abortion was not “rooted in the traditions and conscience of our people,” and Roe was an example of “freewheeling judicial creation of unenumerated rights.”
With Sen. John McCain, R-AZ, absent from the Senate while undergoing brain cancer treatment, the GOP has only a 50-49 margin, and Democrats hope to flip Collins and Sen. Lisa Murkowski of Alaska, another pro-abortion Republican, against Kavanaugh. Vice President Mike Pence could still break the tie with just one defection, but two would be enough to torpedo the nomination.
Both women have voted for all of Trump’s judicial nominees so far, but observers speculate that Kavanaugh’s potential to give the Supreme Court its first-ever anti-Roe majority could change their calculus. Murkowski is set to meet with the judge on Thursday.
Republicans, meanwhile, hope they can cancel out any potential defections by pressuring Democrats Joe Manchin, Joe Donnelly, or Heidi Heitkamp to vote in Kavanaugh’s favor. All three previously crossed party lines to confirm Justice Neil Gorsuch, and all three face re-election this fall in deep red states.
Senate Majority Leader Mitch McConnell has promised that the Senate will vote on Kavanaugh’s nomination this fall, presumably ahead of November’s already-contentious midterm elections.