Supreme Court nominee Brett Kavanaugh hasn’t said publicly whether he would vote to overturn Roe vs. Wade, the 1973 ruling that declared a constitutional right to abortion. But a speech he gave to a conservative group 10 months ago appears to be the strongest evidence so far of Kavanaugh’s views on the issue.
Not surprisingly, those views look consistent with President Trump’s promise, as a candidate, to appoint justices who would “automatically” overturn Roe. Groups on both sides of the issue are circulating the speech, and it’s likely to come up at his Senate confirmation hearing.
In 2006, Kavanaugh assured senators during his confirmation hearing for a judgeship on the U.S. Court of Appeals in Washington, D.C., that he considered Roe vs. Wade “binding precedent” that he would follow “faithfully and fully,” as required for judges on lower federal courts. But he shed a different light on his views of the decision last September in a speech to the American Enterprise Institute.
His topic was the late Justice William Rehnquist, “my first judicial hero,” who had dissented from the 7-2 abortion ruling a year after President Richard Nixon appointed him to the court.
Kavanaugh did not explicitly say he disagreed with Roe vs. Wade and wanted it reversed. But he made it clear that he approved of Rehnquist’s reasoning on issues of “unenumerated rights” — those not spelled out in the Constitution — in the abortion dissent and a 1997 majority ruling from the Supreme Court upholding Washington state’s ban on physician aid in dying.
“Who decides when it is time to create a new constitutional right or to eliminate an existing constitutional right?” Kavanaugh asked. “The Constitution quite specifically tells us that the people decide through their elected representatives.”
He said Rehnquist, in his 1997 ruling, had helped to “ensure that the court operates more as a court of law and less as an institution of social policy.”
His speech to the American Enterprise Institute surfaced this week in online postings by advocacy groups. David Cohen, a law professor at Drexel University in Philadelphia who helped to spread the word after reading about the speech on Twitter, said Thursday that Kavanaugh had made his position fairly clear.
“I think he’s telling us that he thinks then-Justice Rehnquist was right in Roe vs. Wade,” Cohen said. “Every nominee swears allegiance to precedent during confirmation proceedings, and then they vote with their own views.”
The liberal group People for the American Way said Kavanaugh’s record “leaves no question about the dangerous fate of Roe vs. Wade — and millions of American women — if he is confirmed.” Liberty Counsel, a conservative Christian legal organization, praised the September speech in a statement.
“Judge Brett Kavanaugh exhibits the kind of judicial philosophy that everyone should embrace,” said Mat Staver, the group’s founder and chairman. “Judges are to interpret the law, not make it.”
In his speech, Kavanaugh recalled that as a Yale Law School student in the late 1980s, “in class after class, I stood with Rehnquist,” often alone. Overall, he said, Rehnquist “was successful in stemming the general tide of free-willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
The court majority in Roe vs. Wade said a woman’s right to decide whether to give birth was part of the constitutional right to privacy that the court had declared in a birth-control case in 1965.
But Kavanaugh said Rehnquist, in his dissent, argued that any right not mentioned in the Constitution “had to be rooted in the tradition or conscience of our people.” Rehnquist found that abortion did not fall into that category, Kavanaugh said, because it had been extensively regulated through the nation’s history.
“He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution, but otherwise he stated the states had the power to legislate with regard to this matter,” Kavanaugh said.
Likewise, he said, Rehnquist concluded in the 1997 ruling on physician assistance in dying that no such right had been established in the nation’s history or tradition.
“Even a first-year law student could tell you that the (1997 ruling’s) approach to unenumerated rights was not consistent with the approach of the abortion cases” such as Roe vs. Wade and a 1992 ruling that largely upheld it, Kavanaugh said. He made it clear that he preferred Rehnquist’s approach.
As an appeals court judge, Kavanaugh dissented last fall when his court allowed a 17-year-old undocumented immigrant to leave federal custody and have an abortion. He said immigration officials should have been allowed to keep her confined until they found a suitable sponsor to care for her, and accused the court majority of establishing a new right of “immediate abortion on demand” for unauthorized immigrants.
Although he hasn’t stated an intention to overrule Roe vs. Wade, he is sure to be questioned about the issue at his confirmation hearing. One Republican senator, Susan Collins of Maine, has said she would not support a nominee who would vote to overturn the abortion ruling.
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