After four days of hearings before the Senate Judiciary Committee, Judge Brett Kavanaugh has progressed closer towards eventual confirmation to the Supreme Court. The hearings, which began Sept. 4, included several disruptions by protestors, seemingly political lines of questioning by senators, and even a cameo appearance by the youth basketball team he coaches.
As was widely expected, the issue of abortion loomed large during parts of the questioning, despite Kavanaugh’s relative lack of a judicial track record, or even public statements, on the issue. The only recent case in which Kavanaugh ruled on abortion came last year, when he argued that an undocumented minor teenager in federal custody should not be permitted to have an abortion immediately.
Kavanaugh was questioned by both Republican and Democratic members of the Senate about his thoughts on the issue, and he offered no indication that he thought the landmark case of Roe v. Wade, which affirmed the legal existence of abortion rights, should be overturned,.
Kavanaugh was questioned about a 15-year-old email, in which he questioned the statement that abortion was “settled law.” The judge explained that he was actually questioning the claim that legal scholars generally agreed that abortion was “settled law.”
“I’m always concerned with accuracy,” he said, “I thought that was not quite an accurate description of all legal scholars because it referred to ‘all.’”
The judge then stated that he believed that Roe is “important precedent” which has repeatedly been reaffirmed by the Supreme Court.
This statement, however, did not do much to reassure those in favor of abortion rights, as activists continually, and loudly, protested Kavanaugh’s nomination throughout the four days of hearings.
Sen. Lindsey Graham (R-S.C.) questioned Kavanaugh Sept. 6 “is there anything in the Constitution about a right to abortion? Is anything written in the document?”
Kavanaugh replied: “Senator, the Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case, has reaffirmed it many times.”
Graham pressed the issue, and Kavanaugh responded that the Supreme Court applied the liberty clause in its decisions regarding abortion: “The Supreme Court has found it under the liberty clause but you’re right.”
“The liberty clause talks about liberty,” Kavanaugh stated.
“Last time I checked, liberty didn’t equate to abortion,” Graham said. “The Supreme Court said it did, but here’s the point. What are the limits on this concept? You had five, six, seven, eight or nine judges. What are the limits on the ability of the court to find a penumbra of rights that apply to a particular situation? What are the checks and balances on people in your business, if you can find five people who agree with you to confer a right whether the public likes it or not, based on this concept of a penumbra of rights. What are the outer limits to this?”
Kavanaugh responded: “The test the Supreme Court uses to find unenumerated rights under the liberty clause of the due process clause of the 14th Amendment, and that refers to rights rooted in the history and tradition of the country.”
The first day of the hearings saw several of women outside the hearing room protest his nomination by dressing in costumes from the book The Handmaid’s Tale, while several more individuals were removed from the hearing room after attempting to disrupt proceedings.
These interventions continued throughout the week, with the Women’s March even creating a “funeral procession” of women in funeral attire who marched towards the hearing.
Kavanaugh also came under fire for his comments regarding birth control.
In a summary of the argument presented by the pro-life Catholic group Priests for Life in the case Priests for Life v. U.S. Department of Health and Human Services which was brought over the HHS contraception mandate, Kavanaugh stated that the priests “said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objecting to.”
While Kavanaugh did not say that he himself thought this about birth control, those opposed to his nomination sent out mass emails decrying Kavanaugh’s presence potential confirmation to the court as “dangerous” for women. The Women’s March went as far as to say that his nomination constituted “an emergency, all-hands-on-deck moment for women across America.”
The Senate Judiciary Committee is expected to vote on a recommendation to confirm Kavanaugh in the near future. Assuming his nomination clears this hurdle, it would then be put to a vote before the entire Senate.