The Washington PostDemocracy Dies in Darkness

Opinion The Republican charade on Roe v. Wade was just unmasked

Sen. Kamala D. Harris (D-Calif.) questions Judge Brett M. Kavanaugh during his Supreme Court confirmation hearing on Wednesday. (Jacquelyn Martin/AP)
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It’s time to end the charade.

The particular charade I speak of is the one in which Republicans pretend that Judge Brett M. Kavanaugh might not have made up his mind about abortion, or might have such deep respect for precedent that he’ll put his personal opinions aside and vote to uphold a woman’s right to reproductive choice.

We all knew what a lie that was, but now we’re getting some previously hidden evidence about the GOP’s obfuscatory tactics and Kavanugh’s role in helping to develop them.

The New York Times’s Charlie Savage has obtained emails written by Kavanaugh when he worked in the George W. Bush administration that are highly relevant to Kavanaugh’s Supreme Court nomination and the fact that he is likely to be the fifth vote to overturn Roe v. Wade. These emails were provided to the Senate Judiciary Committee by a lawyer working for Bush but deemed by that lawyer to be “committee confidential,” which means that the senators are allowed to see them but they are not supposed to discuss them publicly.

Someone — presumably a Democratic senator — broke that confidentiality to make them public. What the emails show isn’t so much Kavanaugh’s secret beliefs, though they do highlight his dishonesty about one key question. More than that, they show what a farce this entire process has become.

Here’s part of Savage’s report:

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

What’s most notable about this is that in 2003, Republicans were engaged in exactly the same project of public deception that they are enacting now. They were drafting an op-ed to make the case that Priscilla Owen, a controversial appeals court nominee mentioned at the time as a potential future Supreme Court pick, would actually not work to undermine reproductive rights. They were apparently going to do this by saying that since Roe is “settled law,” then any personal beliefs Owen might have would be irrelevant anyway.

Sen. Dianne Feinstein (D-Calif.), asked Supreme Court nominee Brett Kavanaugh about an email giving context about his view of Roe v. Wade on Sept. 6. (Video: Reuters)

We should note that Owen, who now sits on the U.S. Court of Appeals for the 5th Circuit, has in fact proven to be a staunch opponent of abortion rights, to absolutely no one’s surprise. But it’s interesting that at the time, Kavanaugh was uneasy about using the term “settled law” to refer to Roe, because of course the Supreme Court can overturn any decision whenever it wants, so nothing is ever settled for all time.

There’s another fascinating email, in which Kavanaugh is asked for advice on how Owen should handle her meetings with senators. Here’s what he wrote:

She should not talk about her views on specific policy or legal issues. She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.

Now fast-forward to 2018. Brett Kavanaugh meets with Sen. Susan Collins, a pro-choice Republican who has said that she won’t support a Supreme Court nominee who would overturn Roe. What does he tell her? This:

“He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law,” Collins told reporters. She praised her session with Kavanaugh as “excellent.”

Well what do you know! Roe is settled law after all.

After that meeting, Collins was excoriated for being either dishonest or shockingly naive, to think that the fact that Kavanaugh uttered the magic words “settled law” to her meant that he will actually support the maintenance of abortion rights. And yesterday, Sen. Kamala D. Harris (D-Calif.) homed in on this issue in her questioning of Kavanaugh, who was so evasive that he almost refused to even admit that the Supreme Court can overturn any precedent it wants. Here’s a bit of their exchange:

HARRIS: As a factual matter, can five Supreme Court justices overturn any precedent at any time if a case comes before them on that issue?
KAVANAUGH: You start with a system of precedent that’s rooted in the Constitution …
HARRIS: I know, but just as a factual matter, five justices, if in agreement, can overturn any precedent, wouldn’t you agree?
KAVANAUGH: Senator, there’s a reason why the Supreme Court doesn’t do that.
HARRIS: But do you agree that it can do that?
KAVANAUGH: There are times, but there’s a series of conditions, important conditions that if faithfully applied make it rare …

As these hearings have shown, you could ask Kavanaugh whether two plus two equals four, and he would respond, “The number two has a curve at the top and a straight horizontal line at the bottom. The plus sign is two perpendicular crossed lines, which is interesting because the cross is also a symbol of Christianity…” and keep going on in that vein as long as you allowed him without ever answering the question.

So let’s be clear about this: Brett Kavanaugh was nominated to the Supreme Court precisely because he is all but guaranteed to be a vote to overturn Roe. That isn’t the only reason — he has extremely, even radically conservative views on a whole host of issues — but if there were even an iota of doubt about his position on abortion, he would never have been nominated.

That isn’t only because President Trump made a firm pledge during the 2016 campaign that he would appoint only Supreme Court justices who would vote to overturn Roe. It’s also because Kavanaugh is a product of a system that was put in place by conservatives to make sure every Republican president can be supplied with a steady stream of nominees who are unquestionably committed to the conservative legal project.

They’re identified in law school when they join their school’s chapter of the Federalist Society, then they move through clerkships with conservative judges, positions in Republican administrations, jobs at corporate law firms and lower court judgeships. Along the way they accumulate friendships and professional relationships with people in the right’s legal-activist community, who can vouch for their ideological fealty when the time comes. To one degree or another, every conservative on the Supreme Court right now came through that pipeline.

But because Republicans know that overturning Roe v. Wade is a prospect most of the American public looks on with horror, they long ago made a decision to mislead, dissemble and outright lie about their intent to kill it. Kavanaugh helped develop the GOP strategy of obfuscation in 2003, and now he’s its lead actor. So when are we going to stop pretending that we don’t know exactly what he and the rest of the Republican Party are up to?