During his confirmation hearings, Brett Kavanaugh is likely going to do his best to dodge questions about his stance on certain landmark Supreme Court hearings, particularly Roe v. Wade, which Kavanaugh could help overturn if confirmed to the bench.
An excerpt of his prepared opening statement, as reported by CNN, suggests Kavanaugh will try to give away as little as possible, but, in doing so, will align himself with many of the anti-abortion justices currently sitting on the Supreme Court.
"A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy," Kavanaugh will tell the Senate Judiciary Committee, according to CNN. "I don't decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge."
In his 1991 confirmation hearings, Supreme Court Justice Clarence Thomas also made clear that his “personal opinion” or preferences should have no influence on the standing of Roe v. Wade.
“Senator, your question to me was […] do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade, and my answer to you is that I do not,” Thomas told Vermont Senator Patrick Leahy—who will also have the opportunity to question Kavanaugh as well—at the time Thomas was confirmed.
In his 2005 confirmation, Supreme Court Justice John Roberts appealed to “precedent” when appearing before the Senate Judiciary Committee, saying that his own opinions weren’t reason enough to overturn a law the Supreme Court has already ruled on.
“Precedent plays an important role in promoting stability and evenhandedness,” Roberts said. “It is not enough that you may think the prior decision was wrongly decided.”
Justice Samuel Alito made similar comments the year after during his own confirmation hearings. He told the Senate Judiciary Committee he had an “open mind” on abortion rights, and arguing that following precedent—including the one established by Roe v. Wade—was “very important” to him.” When Alito had to answer for anti-abortion remarks he made in a 1985 job application—where he’d written “the Constitution does not protect a right to an abortion”— Alito reassured senators that he would “respect legal precedent on abortion rights and put his personal views aside.”
All three justices have, at one point, ruled against abortion rights or openly stated their opposition to Roe v. Wade.
Less than a year into his tenure on the Supreme Court bench, Thomas joined a dissenting opinion stating: “Roe was plainly wrong—even on the Court’s methodology of ‘reasoned judgment.’” Together, Thomas, Roberts, and Alito have helped form the Supreme Court’s anti-choice contingent, ruling against abortion rights in cases like 2016’s Whole Woman’s Health v. Hellerstedt, which—contrary to their wishes—overturned a Texas law that shuttered nearly half of all abortion clinics in the state.
Pro-choice Democrats on the Senate Judiciary have little reason to believe Kavanaugh won’t follow in these justices’ footsteps, especially considering President Donald Trump’s pledge to appoint only pro-life judges to the bench. On Tuesday—following motions to adjourn the confirmation hearings altogether because of Trump's decision to withhold more than 100,0000 documents on Kavanaugh's record—Democrats sitting on the committee made it clear they plan to press Kavanaugh on where he stands on Roe.
"Although you told Senator [Susan] Collins that you believe [Roe v. Wade] is 'settled law,' the question is really—do you believe it is correct law?" California Senator Dianne Feinstein asked in her opening statement. "What women have won through Roe v. Wade, and through a host of privacy cases, to be able to control their own reproductive system is extremely important to this side of the aisle and, I hope, to the other side of the aisle as well."
As Kavanaugh's confirmation hearings continue throughout the week, reproductive rights advocates will be paying close attention to the language he uses to answer Feinstein's and others' questions about Roe.
“Brett Kavanaugh must affirmatively declare that he believes the Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and personal relationships,” a Planned Parenthood spokesperson wrote in an email ahead of Tuesday’s session, ”including the right to use contraception, to have an abortion, and the freedom to marry whom they choose.”