US top court nominee Kavanaugh praises judicial ‘precedent,’ stays mum on Roe v. Wade vote

'Precedent is the foundation of our system.'
Wed Sep 5, 2018 - 11:19 am EST
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Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2), Sept. 5, 2018. C-SPAN / Youtube screen grab

WASHINGTON, D.C., September 5, 2018 (LifeSiteNews) – Judge Brett Kavanaugh lavished praise on the importance of judicial precedent to the Senate Judiciary Committee on Wednesday, but refused to answer whether he would vote to uphold or overturn Roe v. Wade.

The questions came from Senate Judiciary Committee Chair Chuck Grassley, R-IA, then Sen. Dianne Feinstein, D-CA, during the second day of confirmation hearings for Kavanaugh’s nomination to the Supreme Court.

Grassley first asked for Kavanaugh’s general understanding of how judges should handle precedent (also known as the judicial doctrine of stare decisis). He answered that precedent was “the foundation of our system.” It “reinforces judicial independence” and “assures that judges are not just following their personal beliefs.”

Kavanaugh also said he would follow the examples set by Justices Ruth Bader Ginsburg and Elena Kagan during their own confirmation hearings, and decline to give specific answers on how he might rule on future cases or whether he considered past cases rightly decided.

Feinstein used her opportunity to ask Kavanaugh to elaborate on reports that he said Roe was “settled law.” He answered that the 1973 ruling that legalized abortion-on-demand was "entitled to respect under principles of stare decisis."

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times,” he continued, singling out Planned Parenthood v. Casey as particularly weighty because it “didn’t just reaffirm it in passing”; it laid out all the “factors relevant to stare decisis to decide whether Roe should be overruled.”

Kavanaugh’s answers are consistent with past public statements he has made, and it remains uncertain whether they reflect genuine deference to Roe or are phrased to appease senators who could cast the deciding vote for his confirmation. His thin record of abortion-related statements and rulings does not conclusively answer the question, but the closest is a 2017 speech on the jurisprudence of his “first judicial hero,” the late Chief Justice William Rehnquist.

Kavanaugh specifically cited Rehnquist’s opposition to Roe. He said, seemingly approvingly, that Rehnquist found that a right to abortion was not “rooted in the traditions and conscience of our people,” and that Roe was an example of “freewheeling judicial creation of unenumerated rights.”

But while the speech suggests Kavanaugh believes Roe was wrongly decided, his testimony Wednesday further complicated the question by approvingly citing Rehnquist’s vote in Dickerson v. United States, a 2000 case concerning Miranda rights in police interrogations, as an example in which Rehnquist upheld precedent he had previously criticized.

Regardless of the uncertainties in his record, pro-lifers are cautiously hopeful, and pro-abortion advocates intensely afraid, that Kavanaugh would provide the long-awaited fifth vote to overturn Roe and allow states and Congress to directly vote on whether abortion should be legal.

Readers can follow the hearing’s second day in real time with C-SPAN’s live video and SCOTUSBlog’s live blog of highlights.

  abortion, brett kavanaugh, chuck grassley, dianne feinstein, donald trump, judicial nominees, kavanaugh confirmation hearings, precedent, roe v. wade, senate, senate judiciary committee, stare decisis, supreme court

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