Jed Shugerman co-authored an op-ed for Slate on the possible impact on abortion rights if President Trump’s nominee, Judge Brett Kavanaugh, gets appointed in the Supreme Court.
Before he was nominated, Judge Brett Kavanaugh had jettisoned the established playbook for prominent judges who might be in line for a Supreme Court nomination. The current rule is that a judge with Supreme Court ambitions: 1) avoid saying anything on the record directly about Roe; 2) in public comments, emphasize the general importance of deferring to precedent, without being too specific. (In a pinch, stating tautologically that a precedent of the court is indeed “a precedent of the court” will usually serve.)
But to his credit, Judge Kavanaugh has been remarkably transparent over the course of his judicial career, both in his writings and in his public statements. It is refreshing that a nominee has such a relatively clear record. It is critical that Judge Kavanaugh maintain that course during any upcoming confirmation hearings, avoiding the sort of question dodging that has long plagued federal judiciary hearings.
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Now that he is on the record, Judge Kavanaugh must address these questions candidly in confirmation hearings. Those questions are not just limited to his willingness to reverse Roe. Based on his own writings, he needs to explain if—as he has previously indicated—he agrees with Justice Rehnquist that Roe was not “rooted in the traditions and conscience of our people” and whether he agrees that the substantive due process and related privacy rights laid out in the reproductive rights cases of the 1960s and 1970s are not sound. He must also explain what the boundaries of government “facilitation” might be, in cases where the government might make a moral, but not a constitutional, decision about protected rights.
Judge Kavanaugh should be credited for his candor in taking his stands against Roe last year. It surely played a role in his nomination. It must also be addressed directly during his confirmation. To inquire along these lines and to demand substantive answers as opposed to vague claims about precedent is not bullying or abuse. Reproductive and contraceptive freedom, and perhaps privacy rights more broadly, turn on his votes. He’s given the nation a lot to work with. He should work with us to understand what he believes.