Kavanaugh Tackles Roe v. Wade During Confirmation Hearing

U.S. Supreme Court nominee Brett Kavanaugh reaffirmed his position Wednesday that the 1973 Roe v. Wade abortion decision is settled law under the doctrine of stare decisis, during the second day of his confirmation hearing.

Senate Judiciary Committee ranking member Dianne Feinstein (D-Calif.) quizzed Kavanaugh if what he means is that the decision represents “correct law,” had his views changed over the years, and did he now think it could be overturned.

“I said that it is settled as a precedent entitled to respect under the principles of stare decisis,” Kavanaugh said. “And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know. And most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”

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Feinstein interrupted to ask him to elaborate on what he means by stare decisis, noting that in her experience nominees have cited it only to overturn settled precedents. Kavanaugh responded that he understands the importance of the issue to people. She then asked if his views on its being settled have changed since his time at the White House.

“I’m not sure what it’s referring to at the Bush White House but I will tell you what my view is now,” Kavanaugh said. “It’s an important precedent of the Supreme Court that has been affirmed many times. But this is the point I want to make clear that’s very important. Planned Parenthood v. Casey reaffirmed Roe and it is using the stare decisis factors. So Casey became precedent atop of precedent.”

Democrats are determined to force Kavanaugh to commit to voting in favor of preserving their view that Roe v. Wade provides a virtually unlimited right to terminate an unborn baby’s life.

The stare decisis doctrine, however, does not bar later courts from reversing prior landmark decisions, as happened in Brown v. Board of Education in 1954, which reversed Plessy v. Ferguson, an 1896 decision that upheld racial segregation in public facilities.

“As a judge, it is an important precedent of the Supreme Court,” Kavanaugh said. “By it, I mean Roe v. Wade and Planned Parenthood v. Casey. It has been reaffirmed many times. Casey is precedent on precedent, which in itself is an important factor to remember, and I understand the significance of the issue.”

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Senate Democrats have been pushing to delay the confirmation process since July 9, when President Donald Trump announced Kavanaugh as his nominee to succeed the retiring Justice Anthony Kennedy.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and other Republicans on the panel view the Democrats’ constant calls for delaying the process as nothing more than an attempt to delay the proceedings past the November elections, when they hope to regain a Senate majority to nullify the Kavanaugh nomination.

Kavanaugh has decided recent cases based on what he refers to as the “major rules doctrine.” His believes the law must clearly express if it wishes to assign an agency authority of vast economic and political significance. Kavanaugh has resisted the expansion of administrative agency power and is opposed to judicial activism.