Judge Brett Kavanaugh has maintained his composure under a particularly grueling level of interrogation rarely seen outside a courtroom. But perhaps the biggest challenge to his bid for confirmation as an associate justice of the US Supreme Court may lie in his views on the landmark Supreme Court ruling in Roe v. Wade, which legalized abortion nationally.
A leaked email obtained by the New York Times showed that as an official in the George W. Bush administration 15 years ago, Kavanaugh questioned whether legal scholars widely believed Roe v. Wade was "settled law." Kavanaugh wrote in 2003, "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so."
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His comments before the Senate Judiciary Committee this week were more nuanced -- he called the right to abortion as outlined in the Roe v. Wade decision "important precedent," adding that the precedent had been reaffirmed by the Supreme Court in the case of Planned Parenthood vs. Casey. He also defended his dissent from a circuit court ruling that enabled a 17-year-old woman being held in an immigration detention center to end her pregnancy.
Many Democratic senators have mined their questions from Kavanaugh's written record of hundreds of thousands of documents as well as published court opinions and law journal articles authored by the 53-year-old Yale Law School graduate, former special prosecutor, presidential advisor and federal appellate judge; its voluminous nature bears comparison to that of Judge Robert Bork, whose confirmation bid was famously sunk 30 years ago.
This time, there was an added twist. Even emails on threads from the distant past appeared to be fair game for questioning of Kavanaugh in our new era of perpetual electronic information storage.
The questions around Roe v. Wade may have the most potential to block his confirmation. Kavanaugh may need all the Republican votes to win confirmation and thus would not be able to afford the loss of either Republican Sen. Susan Collins of Maine or Sen. Lisa Murkowski of Alaska, who have expressed support for abortion rights.
Though sticking to the "Ginsburg Rule"—named after Justice Ruth Ginsburg for declining to answer questions during her confirmation hearing that she felt might reveal how she would vote in future Supreme Court cases -- Kavanaugh's description of Roe as a precedent made it seem that it would have a firm basis in law under the doctrine of "stare decisis", which means "to stand by things decided." It is a doctrine which in turn has a "constitutional basis" as outlined in "The Federalist Papers."
Another issue which has the potential to sink the Kavanaugh ship is his newly-found devotion to the idea that Congress should pass a law making it clear that a sitting president should be immune from the duty to respond to either criminal or civil process (subpoenas or trials etc.) during his term in office. Kavanaugh, while working for Independent Counsel Ken Starr, had no problem with aggressively prosecuting and eventually seeking the impeachment of President Bill Clinton.
Kavanaugh says he only realized the need for keeping presidents focused on American security interests and undisturbed by the threat of civil or criminal litigation when he worked for President George Bush in the aftermath of 9/11. In fact Judge Kavanaugh has written a law journal article about the subject with which the Democrats can torment him when they tire of the Roe vs. Wade focus.
Kavanaugh's apparent devotion to presidential power, undisturbed by the bother of responding to criminal or civil cases in court, was undoubtedly good news for President Donald Trump who is having a very bad week in most other respects.
His week began with a Twitter attack on his own attorney general Jeff Sessions for having the audacity to indict two of the President's early Congressional supporters. Apparently no one has advised Mr. Trump that the federal criminal code does not contain a provision granting immunity from prosecution to a President's early supporters.
This was then followed by the widespread publication of embarrassing excerpts from Bob Woodward's new book "Fear: Trump in the White House," which depicts, based on alleged confidential interviews with Trump's top advisers, a frighteningly chaotic and dysfunctional White House.
The President's day finally concluded with the news that an anonymous senior official had published an op-ed in the New York Times describing the existence of a "resistance faction" operating secretly in the administration to protect the nation from the President's "half-baked, ill-informed and occasionally reckless decisions that have to be walked back."
Yet another Woodward quote seemed to sum the whole thing up. Chief of Staff John Kelly has described the White House as "crazytown." Though Kelly now denies this, one thing is clear. If the White House is "crazytown," the country has an even greater need for clear thinking and sanity on the Supreme Court.
Though clearly out of the mainstream in his views that sitting presidents should not be subjected to the burden of responding to the subpoena power of the courts and grand juries, Kavanaugh has otherwise demonstrated a finely honed legal mind and a resume brimming with impressive achievements.
Amidst the chaos, in the unlikely event Kavanagh is rejected, Trump would be hard-pressed to replace him with a more impressive or qualified nominee. The Democrats might be wise to reconsider their opposition to the highly regarded Kavanaugh, a man who unlike the President, has actually read not only "The Federalist Papers" but also the Constitution of the United States.
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