The real questions senators need to ask Brett Kavanaugh (Hint: 'It's precedent' isn’t the right answer to any of them)

The real questions senators need to ask Brett Kavanaugh (Hint: 'It's precedent' isn’t the right answer to any of them)
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I have been involved in the fight for equality and reproductive rights for 35 years, founding Planned Parenthood’s litigation division. I have not only been involved in or closely monitored literally every significant court case involving reproductive rights, but necessarily, I have carefully watched every Supreme Court confirmation during those three-plus decades.

There is no question that if Judge Brett KavanaughBrett Michael KavanaughGraham vows to push Trump’s AG pick through Judiciary Committee Log Cabin Republicans leader 'not nervous' about conservative Supreme Court impacting LGBT rights Dem pollster says concerns over Kavanaugh were 'merit-based,' not about partisanship MORE is confirmed, he will have the power to swing the Supreme Court on abortion rights and access to contraception  

And his recent speech to the American Enterprise Institute (AEI) clearly signals that he will use that swing-vote power to roll back women’s ability make their own health care decisions without government interference.

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Kavanaugh gushes about his judicial hero, the late Chief Justice William Rehnquist. It’s an address that no one who actually wants to get confirmed by the U.S. Senate would be advised to give. It instead reads like an audition for the right-wing Federalist Society’s list of judges from which Trump has chosen his Supreme Court nominees.

 

Kavanaugh praises Rehnquist’s 1997 decision in Washington v. Glucksberg — an assisted suicide case – because Rehnquist, was “successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

Kavanaugh leaves no mystery about what he means by those “unenumerated rights” that the Court “created,” characterizing them instead as “social policy.”  As he praises Rehnquist’s “success” in Glucksburg, he bemoans Rehnquist’s lack of success “…in convincing a majority of the justices in the context of abortion either in Roe [v. Wade] … or in the later cases such as [Planned Parenthood v.] Casey ….”

 These, of course, are the Court’s two seminal decisions concluding that the Constitution protects a woman’s right to abortion.

In addition to naming Rehnquist as a “judicial hero,” Kavanaugh said that as a law student in the late 1980’s he would “constantly” agree with Rehnquist’s opinions, which “made a lot of sense” to him. One of those opinions from that era, which Rehnquist joined, was Bowers v. Hardwick (1986), which concluded that the Constitution provided no protections for private sexual activity between consenting same-sex adults, because prohibitions on sodomy had “ancient roots” - a decision that was later overruled in Lawrence v. Texas … an opinion in support of personal liberty written by Justice Kennedy. 

Given what he’s written, the stakes are way too high to let Kavanaugh get away with vague confirmation hearing answers that acknowledge that previous cases are “precedent” - the kinds of answers that nominees have given (and then ignored) in the past.

Here is what senators should ask Kavanaugh to allow the American people to really understand how he would rule on questions involving the personal liberties of Americans - liberties that help make America a place where women have a better chance to succeed and allow all Americans to be with whom they love:

  • Do you agree that Rehnquist took a view of “unenumerated rights” under which the Fourteenth Amendment’s protection for individual liberty only reaches those rights that are “deeply rooted in the nation’s history and tradition?” And that in his opinion, therefore, the Constitution does not protect the right to have an abortion, because it is not such a right?
  • And would you agree that Justice Kennedy took a different view, explaining in Lawrence v. Texas that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom?” And that under this view, Justice Kennedy believed that the Constitution protects women’s liberty to choose abortion?
  • Do you agree that these are two divergent views about what rights are protected by the Fourteenth Amendment? With which Justice do you agree?

When Roe was decided, the Court’s opinion was 7-2 - with Rehnquist’s view of “unenumerated rights” an extreme minority view of the Constitution. But today, there are already four justices on the Court — from Justice Roberts on one end of the right-leaning spectrum to Justice Thomas on the furthest end — who seem to share that judicial philosophy.

The American people - and the Supreme Court for more than half a century - do not. Seventy-two percent of Americans support Roe v. Wade — including a majority of Democrats, independents, and Republicans. But Trump made clear that he would only appoint judges who would take action against this settled law. Kavanaugh’s AEI speech is like a giant “Pick me! Sign.”

The burden is on him to explicitly explain why that conclusion is wrong.

Anything less clearly justifies a “No” vote.

Roger Evans started and directed the Public Policy Litigation and Law program for Planned Parenthood before assuming the position of Senior Counsel, Law and Policy. He was lead or co-counsel in many U.S. Supreme Court cases. Mr. Evans continues as a senior advisor on major litigation and provides strategic legal advice on legislation in Congress and state legislatures.