Kavanaugh says he’ll respect abortion’s ‘precedent on precedent.’
Judge Kavanaugh, under attack from progressives and Democrats who say he will roll back abortion rights, insisted to senators that he understands the significance of the issue and will respect the Supreme Court’s ‘precedent on precedent.’
‘I don’t live in a bubble — I live in the real world,’ he said, after Ms. Feinstein reminded him of the ‘death tolls in this country’ among women who tried to end their own pregnancies before Roe v. Wade, the landmark 1973 decision establishing a constitutional right to abortion.
‘I understand your point of view on that and I understand how passionate and how deeply people feel about this issue,’ he said.
Continue reading the main story Senator Feinstein did not ask him the operative question — Does he believe Roe was correctly decided? — but even if she had, he had already told Senator Grassley it would not be appropriate to answer it. She did ask him what he meant when he told Senator Susan Collins, Republican of Maine, that he believed Roe is ‘settled law.’ At that, he launched into a discourse on the value of precedent.
Judge Kavanaugh said that Roe is ‘settled as a precedent of the Supreme Court,’ and as such, deserves respect from judges who take note of it. But then he noted a subsequent case, the 1992 case of Planned Parenthood v. Casey, which narrowed the scope of Roe, at the same time that it reaffirmed Roe as a precedent.
Casey, which gave states the authority to regulate abortion so long as those regulations do not pose an ‘undue burden’ on the woman, is ‘precedent on precedent,’ he said.
His comments were a reminder that, as Senator Chuck Schumer, the Democratic leader, has often pointed out, precedents are only settled law until the Supreme Court unsettles them. Democrats complain that previous nominees have pledged to respect precedent, only to narrow or overturn them once seated on the court.
Kavanaugh cites Nixon to assert his independence.
Answering the very first question on Wednesday, from Senator Grassley, the Judiciary Committee chairman, Judge Kavanaugh said he would be an independent justice. He cited three Supreme Court landmarks to make his case.
Two were predictable: Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional, and Youngstown Sheet and Tube Company v. Sawyer, the 1952 decision rejecting President Harry S. Truman’s attempt to seize the nation’s steel mills to aid the war effort in Korea.
The third was notable: United States v. Nixon, the 1974 decision in which Supreme Court unanimously ruled that President Nixon had to comply with a subpoena seeking tapes of his conversations in the Oval Office.
Judge Kavanaugh has not always been unequivocal in his support for the decision. In a 1999 transcript of a round-table discussion, he said, ‘Maybe Nixon was wrongly decided — heresy though it is to say so.’ His allies have said he meant the statement as a critique of the legal strategy of President Bill Clinton’s lawyers.
On Wednesday, Judge Kavanaugh’s said the message of the decision, which he called one of the greatest moments in American judicial history, was clear. ‘No one is above the law in our constitutional system,’ he said.
‘Sham president, sham justice’
The second day of Judge Kavanaugh’s hearings started with still more protests — just as Senator Grassley opened with a hope that the proceedings would be under more control than Tuesday’s divisive opening. One woman was led out shouting ‘sham president, sham justice.’
In his opening remarks, Mr. Grassley accused Democrats — who plotted strategy for the hearing on a conference call Monday — of colluding with protesters to disrupt the hearing.
‘NBC News reported that Democratic members of the committee plotted with minority leaders to disrupt the hearing yesterday,’ he said. ‘Democratic senators interrupted the hearing 63 times before lunch and in the audience, 70 people were arrested yesterday who were following their lead.’
But one of the protesters took exception to Mr. Grassley’s assertion, since, she said, she was calling out Democratic leaders such as Senator Richard J. Durbin of Illinois for their tepid efforts to thwart the nominee.
Ken Starr redux
In the 1990s, as a prosecutor in Ken Starr’s Monica Lewinsky investigation, Judge Kavanaugh supported aggressive questioning of former President Bill Clinton about his sexual relations with the former White House intern.
Years later, however, Mr. Kavanaugh expressed regret about that view, suggesting that sitting presidents should not be subjected to the kind of distracting investigations that helped subject Mr. Clinton to as part of the Starr investigation.
That shift in views has prompted Democrats to assert that Mr. Kavanaugh would try to protect President Trump from Robert S. Mueller III’s Russia investigation. Ms. Feinstein pressed Judge Kavanaugh on that point on Wednesday.
Mr. Kavanaugh said his views changed after he watched former President George W. Bush deal with the September 11, 2001, terror attacks and the aftermath, and concluded that presidents should not be distracted from important crises like that by having to respond to investigations like the one that Mr. Clinton faced."