President Donald Trump’s Supreme Court selection sweepstakes ended, as promoted, Monday night with the nomination of Brett M. Kavanaugh, a judge on the United States Court of Appeals for the District of Columbia. The 53-year-old long ago ingratiated himself with the conservative Washington elite, working as an aide to former President George W. Bush, and, before that, as an investigator for special counsel Kenneth Starr, during his wide-ranging inquest into the financial and private affairs of then-President Bill Clinton. In spite of that experience (or maybe because of it), Kavanaugh has more recently asserted that sitting presidents should be “excused from some of the burdens of ordinary citizenship” (including being subject to indictment, prosecution, and trial) because it would prove, as he saw it, too distracting—a sentiment that, no doubt, endeared him to Trump.
That apparent evolution aside, the nominee’s long paper trail and the right’s extensive vetting have given most in official Washington (and many among the media who cover it) the sense that they know where Kavanaugh stands. But, as with the law, some things are open to interpretation. With a number of monumental questions working their way to the high court, further examination is essential.
The good-natured hemming and hawing of recent nominees notwithstanding, there is no law, nor precedent, that prohibits the members of the Senate tasked with Kavanaugh’s confirmation from asking tough questions about important issues that might come before the Court. With that in mind, The Nation has asked some of the people who make it their business to watch these important legal developments to help us (and the distinguished members of the Senate Judiciary Committee) better understand what a Justice Kavanaugh would do to US law, and to American society.
Abortion and Reproductive Rights
Nancy Northup, President and CEO of the Center for Reproductive Rights
“The 1992 decision Planned Parenthood v. Casey resulted in splintered opinions. The controlling opinion, which Justice Kennedy joined, reaffirmed a woman’s right to make the ultimate decision to terminate her pregnancy before viability. States could restrict abortion after viability, allowing for life and health exceptions, and regulate abortion throughout pregnancy as long as the restrictions did not impose an ‘undue burden.’ Two justices wrote separately and recognized the constitutional right to abortion, but did not think the Court should allow greater state restrictions on access. And four justices issued a minority, dissenting opinion that would have overturned Roe v. Wade and eliminated the constitutional right to abortion. If you were on the Court in 1992, which of the opinions in Planned Parenthood v. Casey would you have joined?”
Chiraag Bains, Director of Legal Strategies for Demos
“Do you believe that the Constitution requires that we allow corporations and wealthy individuals the unfettered ability to translate their economic might into political power through campaign contributions and expenditures—even if it drowns out the voices of working-class Americans and erects barriers to candidates of color who lack access to big money and the mostly white donor class?”