On Kavanaugh, Some Answers Ring False

      Brett Kavanaugh's mother taught her young son an important lesson that he recalled for members of the Senate Judiciary Committee as the committee opened its hearing on Kavanaugh's nomination as a justice on the U.S. Supreme Court. "Use your common sense," Martha Kavanaugh, later a judge herself in Montgomery County, Maryland, advised. Consider, she went on, "what rings true, what rings false."

      Common sense points to the answers to some of the questions left hanging even after Kavanaugh's two long days alternately answering or dodging questions from a politically divided Senate committee. Political differences aside, a common-sense reading of Kavanaugh's testimony shows that he is ready if confirmed to vote to overrule the abortion-rights decision Roe v. Wade and that he is an uncertain vote at most to uphold any investigative procedures directed at the president who nominated him for the Supreme Court.

      On abortion, Kavanaugh' and his moot-court coaches devised phrasing designed to deflect questions about what his Democratic and progressive opponents saw as his greatest vulnerability. Roe v. Wade, Kavanaugh repeated time and time again, "is an important precedent and it has been reaffirmed several times." He went on to acknowledge that the Court in its later decision, Planned Parenthood v. Casey, considered overruling Roe but decided not to after the majority justices weighed the various factors traditionally considered before reversing a prior decision.

      Sticking to what he called "nominee precedent," Kavanaugh insisted that he could go no further in saying how he would rule in a case that presented the question. But abortion-right advocates zeroed in on Kavanaugh's use of anti-abortion language both in his testimony and in his only opinion to date in an abortion case.

      In recalling his dissenting opinion in the Priests for Life case, Kavanaugh blithely said that the Catholic group was resisting the Affordable Care Act's mandate to cover contraception because it opposed "abortion-inducing drugs." In his written opinion in the case of the Mexican teenager seeking an abortion while in immigration detention in Texas, Kavanaugh included another of the code words used by anti-abortion groups. He described the girl's legal position as amounting to "abortion on demand."

      Kavanaugh actually made his disagreement with Roe quite clear in his answers about other cases, as TPM's Ian Milheiser pointed out. Kavanaugh gave a qualified endorsement to the precursor privacy decision in Griswold v. Connecticut. He also embraced the restrictive "history and tradition" test from Glucksberg as the governing precedent for recognizing "unenumerated rights" as part of substantive due process. 

      With Kavanaugh's views so clear, Republican senators chose not to embrace him as fulfilling President Trump's pledge to appoint a justice who would overrule Roe. South Carolina's Lindsey Graham laid out the case against Roe in a colloquy with Kavanaugh, but the nominee refused to bite. As Martha Kavanaugh might remark, what rings true is Kavanaugh's disagreement with Roe and what rings false is his professed open-mindedness.

      Presumably, Republicans are silent because they know that polls consistently show substantial majorities opposed to overturning Roe. In addition, they know that a misstep on the issue might cost Kavanaugh one or both of the pivotal votes of the two uncommitted Republican senators, both of them pro-choice women: Maine's Susan Collins and Alaska's Lisa Murkowski.

      On presidential power, Kavanaugh has a written record in a law journal article opposing civil or criminal investigations of the chief executive while in office. With special counsel Robert Mueller's investigation still under way, Kavanaugh significantly never disavowed his previous view. Admittedly, Kavanaugh repeatedly praised the Court's 1974 decision in the Nixon tapes case as one of the "greatest moments" in history. But Kavanaugh declined, under questioning by Connecticut Democrat Richard Blumenthal, to specify that the decision would apply not only to a trial court subpoena but also to the more immediate eventuality of a grand jury subpoena to Trump.

      Kavanaugh anticipated questions about his independence from Trump but failed, by discreet silence, to dispel concerns. He noted that in his first year on the D.C. Circuit, he ruled against his former White House by rejecting the Bush administration's policy limiting judicial review for Guantanamo detainees.

      Given several opportunities, however, Kavanaugh stayed "three zip codes away" from any criticism of Trump's tweets mocking the federal judiciary and interfering with Justice Department criminal prosecutions. A "pro-law" independent federal judge, as Kavanaugh repeatedly professed to be, might have spoken up for the rule of law and the independence of the judiciary against a meddlesome president.

      On top of those issues, Democratic senators properly questioned Kavanaugh's truthfulness in his current testimony and in his testimony before his confirmation for the D.C. Circuit. With new evidence from Kavanaugh's emails while in the White House, Democrats showed that the Bush White House staffer was misleading at least in minimizing his involvement in one controversial judicial appointment and his knowledge of the warrantless surveillance and detention and interrogation programs. With most of Kavanaugh's White House records still unreleased, the disclosures showed that Democrats had good reason to keep up their fight despite the Republicans' intransigence.

      Common sense shows to anyone with an open mind what kind of justice Kavanaugh will be if confirmed. The warnings from Democrats ring true; the vacuous assurances from Republicans ring false. But common sense is a casualty in this all-out partisan war for the future of the Supreme Court.