Las Vegas Review-Journal (Sunday)
What Kavanaugh’s hearings reveal about his beliefs on abortion, guns, presidential power
Judge Brett M. Kavanaugh spent two long days last week answering — and often failing to answer — questions about some of the most pressing issues that could reach the Supreme Court in the years ahead. Here’s a look at three of them.
“I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision. I don’t live in a bubble.”
Asked about the constitutional right to abortion, Kavanaugh talked instead about precedent. He described the Supreme Court’s two key decisions: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the core of that right.
Collectively, he said, the two decisions held that “a woman has a constitutional right to obtain an abortion before viability subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman’s right to obtain an abortion.”
But that was description, not endorsement. He did suggest that the Roe decision may be a particularly secure precedent. “It’s not as if it’s just a run-of-the-mill case that was decided and never been reconsidered,” he said. “That makes Casey a precedent on precedent.”
Like earlier nominees, he recited the reasons offered in the Casey decision for leaving precedents undisturbed, including whether people have relied on the decisions, whether the decisions have proved workable as a practical matter and what effect overruling them would have on public perception of the Supreme Court’s legitimacy.
“People rely on the decisions of the courts, and so reliance interests are critically important to consider as a matter of precedent,” Kavanaugh said.
“Precedent also reinforces the impartiality and independence of the judiciary,” he said. “The people need to know in this country that the judges are independent, and that we’re not making decisions based on policy views.”
But Kavanaugh did not say whether he would be prepared to reconsider Roe, and he declined an invitation to agree with a statement from the Casey decision that the right to abortion allows women to “participate equally in the economic and social life of the nation.”
He said instead that the right to abortion was “settled as a precedent of the Supreme Court.” That statement is less categorical than it appears at first blush. To call a decision “settled law” is not to say it is set in stone.
The Second Amendment
“Handguns are used in lots of crimes that result in death and so are semi-automatic rifles. That’s what makes this issue difficult.”
Kavanaugh expressed dismay about gun violence. But he defended a robust view of Second Amendment rights.
He was asked about his 2011
dissent in a case that upheld a ban in Washington on so-called assault weapons. The case was a sequel to District of Columbia v. Heller, the 2008 Supreme Court decision that established a constitutional right to own handguns for self-defense in the home, striking down an earlier Washington law.
The majority in the appeals court ruled that the later ban was constitutional. On Wednesday, Kavanaugh explained that he dissented because Justice Antonin Scalia’s majority opinion in the 2008 decision required it.
He acknowledged that Scalia had said that many gun control laws were unaffected by the 2008 ruling. “Nothing in our opinion,” Scalia wrote, “should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Kavanaugh also said that the 2008 decision allowed machine guns to be prohibited, along with “dangerous and unusual weapons.” But he said semi-automatic weapons presented a different question.
“Most handguns are semi-automatic — something not everyone appreciates,” Kavanaugh said Wednesday. Similarly, he said, “semi-automatic rifles are widely possessed in the United States.”
“I have to follow the precedent of the Supreme Court as it’s written, and that’s what I tried to do in that case,” he said.
Sen. Dianne Feinstein, D-Calif., asked Kavanaugh about the practical impact of his position in light of recent school shootings. He responded that school officials have taken steps to protect students.
“Senator,” he said, “of course the violence in the schools is something we all detest and want to do something about, and there are lots of efforts, I know, underway to make schools safer. I know at my girls’ school they do a lot of things now that are different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone.”
“But as a judge my job, as I saw it,” he said, “was to follow the Second Amendment opinion of the Supreme Court whether I agreed with it or disagreed with it.”
Presidential power
“No one is above the law in our constitutional system.”
Kavanaugh made broad pronouncements on the independence of the judiciary, and he praised the Supreme Court’s unanimous 1974 decision ordering President Richard M. Nixon to comply with a subpoena seeking tapes of his conversations in the Oval Office.
“It was one of the greatest moments because of the political pressures of the time,” he said of the decision, United States v. Nixon. “The courts stood up for judicial independence in a moment of national crisis.”
That ruling would, of course, figure in the resolution of any dispute between Robert Mueller, the special counsel investigating Russian interference in the 2016 election, and President Donald Trump. It was hard to escape the conclusion that Kavanaugh was trying to assure senators that he might be prepared to rule against the president who nominated him, as Chief Justice Warren Burger did in the Nixon tapes case.
But when Kavanaugh was asked more specific questions about Trump, he declined to answer.
“Can a sitting president be required to respond to a subpoena?” Feinstein asked.
Kavanaugh said that was “a hypothetical question about what would be an elaboration or a difference from U.S. v. Nixon’s precise holding.”
“I can’t give you an answer on that hypothetical question,” he said.
He gave a similar answer to whether Trump could pardon himself.
“The question of self-pardons is something I’ve never analyzed,” he said. “It is a question that I’ve not written about. It is a question therefore that is a hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee to the Supreme Court.”