One exchange that took place in the first hour of questioning at Brett Kavanaugh‘s Supreme Court confirmation hearing on Wednesday highlighted the biggest problem with modern discourse on judicial issues. It’s the same problem Senator Ben Sasse lamented in his remarks on Tuesday: there is a common failure to recognize the difference between a judge’s personal beliefs and their interpretation of existing law.
That erroneous conflation was on full display when Senator Dianne Feinstein (D-California) grilled Kavanaugh about his views on abortion. A close read of the questions and answers show that while they were talking about the same general topic, they were really having different conversations. Feinstein was having one that the general public may want to hear, but Kavanaugh was having the one that mattered.
“In the 1950s and 60s, the two decades before Roe, deaths from illegal abortions in this country ran between 200,000 an 1.2 million,” Feinstein cited from a study. She later stated, “I don’t want to go back to those death tolls in this country, and I truly believe that women should be able to control their own reproductive systems within, obviously, some concern for a viable fetus.”
This value-based statement then led into a question over Feinstein’s concern for how Kavanaugh might follow established court precedent regarding the freedom to get an abortion. Kavanaugh stayed away from Feinstein’s talk about personal beliefs about abortion, but did say that heappreciates her point of view. “I understand the importance of the issue, I understand the importance that people attach,” he said. “I don’t live in a bubble.”
What he did explore was what really matters: his judicial philosophy regarding following past Supreme Court decisions that have already settled the issue of abortion. He didn’t just refer to Roe v. Wade, he emphasized the greater significance of Planned Parenthood v. Casey, the later case that reaffirmed a woman’s right to get an abortion. He pointed to that case to show that Roe v. Wade isn’t just a case that could be overturned like any other, because it has already survived reconsideration with the right to an abortion still intact.
“Planned Parent v. Casey reaffirmed Roe … so Casey now becomes precedent on precedent,” he said. “It’s not as if it’s just a run of the mill case that was decided and never been reconsidered.”
Kavanaugh made an apt comparison to the Miranda decision, and how Chief Justice William Rehnquist upheld it, even though he had long been against it.
“Even though Chief Justice Rehnquist, by the way, had been a fervent critic of Miranda throughout his career, he decided that it had been settled too long, had been precedent too long, and he reaffirmed it.”
Feinstein seemed to glaze right over this, and went back to harping on Kavanaugh’s personal beliefs about abortion.
“What would you say your position today is on a woman’s right to choose?”
“As a judge, it’s an important precedent by the Supreme Court, by it I mean Roe v. Wade and Planned Parenthood v. Casey, been reaffirmed many times, Casey is precedent on precedent, which itself is an important factor to remember. And I understand the significance of the issue–the jurisprudential issue–and I understand the significance, as best I can–I always try and I do hear–of the real-world effects of that decision.”
If you’re pro-choice, this is the best answer you could possibly hope for from a conservative Supreme Court nominee. When asked what he thinks about abortion, Kavanaugh basically said, “It doesn’t matter what I think, because the Court has ruled on this multiple times and I respect the decisions of this Court.”
Will that be enough to quell the outrage of Democrats? It should be, but I wouldn’t bet on it, given the current toxic political environment, and the public’s apparent failure to comprehend that what really matters is how a judge or justice will rule, not how they feel, and that rulings and feelings don’t always go hand in hand. When Senators ask questions like the ones Feinstein did today, it doesn’t help.
[Image via CNN screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.