Congressional Democrats are claiming that originalist Supreme Court justices made comments at their confirmation hearings indicating they would vote to uphold Roe v. Wade.
The Washington Post reports that congressional Democrats believe Justice Kavanaugh’s praise of Brown v. Board at Wednesday’s oral arguments in the Dobbs case “was at odds with his tone” during his confirmation hearing:
Democrats [entertaining Court-packing or term-limits for justices] are driven in part by what they see as contradictions between what Supreme Court nominees tell senators during their confirmation hearings and their actions on the bench once they have secured a lifetime appointment.
A particular point of contention this week was comments from Kavanaugh, who said pointedly during the oral argument that the Supreme Court had overturned long-standing precedents in the past, including in Brown vs. the Board of Education, which found that segregation of public schools was unconstitutional.
For Democrats, that was at odds with his tone during his bruising confirmation fight in the Senate three years ago, when he assured senators that he believed Roe vs. Wade, the landmark 1973 case that established a constitutional right to an abortion, was settled law.
At his confirmation hearings in 2018, Kavanaugh, like every other Supreme Court nominee, said respect for precedent was important, but he never suggested he would always uphold erroneous precedents. In fact, he hailed Brown v. Board, which overturned Plessy v. Ferguson, as “the single greatest moment in Supreme Court history”:
Chairman GRASSLEY: Now to a question. I imagine that your 12 years of judicial service on the second-highest court in the land has given you plenty of opportunity to think about my first question, which is what makes a judge a good one, and what influences in your life have shaped your vision of how a judge should go about doing his job?
Judge KAVANAUGH: Thank you, Mr. Chairman. I think the first quality of a good judge in our constitutional system is independence. Independence comes directly from Article III of the Constitution. The independence of the Federal judges really is guaranteed by the Framers in our life tenure and our protection from pay reduction. So because we have life tenure, we are independent and immune from political or public pressure. So I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone. That takes some judicial fortitude. The great moments in American judicial history, the judges had backbone and independence. You think about Youngstown Steel. You think about, for example, Brown v. Board of Education, where the Court came together and knew they were going to face political pressure and still enforced the promise of the Constitution.
Senator CORNYN: But can you talk about the extraordinary circumstances under which the Supreme Court would revisit a precedent?
Judge KAVANAUGH. Well, Brown v. Board of Education, of course, overturned Plessy. Plessy was wrong the day it was decided. It was inconsistent with the text and meaning of the Fourteenth Amendment, which guaranteed equal protection. […] Brown v. Board, as I have said publicly many times before, [is] the single greatest moment in Supreme Court history…
Here’s an Associated Press story suggesting Kavanaugh was misleading on Roe:
Kavanaugh repeatedly told the senators under grilling from Democrats and Republicans that the women’s right to an abortion has been affirmed.
“The Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times,” he told Sen. Lindsey Graham, R-S.C.
How could anyone interpret that factual statement as a commitment — or even a hint of a commitment — to not overturn Roe in the future?
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