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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Oyez! Oyez! Oyez! Collins v. Kavanaugh

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

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Good morning, Early Birds. The House and Senate are out of town and the president is overseas, but the Supreme Court will likely still dominate the news this week. Tips? You know the drill: earlytips@washpost.com. Thanks for waking up with us. 

Do you like scoops and smart analysis with your morning coffee? Sign for The Early 202 here.

Programming note: Leigh Ann interviews Sen. Tina Smith (D-Minn.) and Marjorie Dannenfelser, co-founder of Susan B. Anthony Pro-Life America, today on Washington Post Live about next steps for both sides of the abortion debate. 

In today’s edition … Tony Romm with the latest on the state of the Build Back Better talks … G-7 leaders seek price cap on Russian oil to ‘starve’ Putin’s war effort; Russia defaults on foreign debt … but first …

On the Hill

Collins v. Kavanaugh: A misunderstanding or deception?

Sen. Susan Collins (R-Maine) is pressing the case that Supreme Court Justice Brett M. Kavanaugh misled her on Roe v. Wade, dismissing his defender’s argument that as a nominee the judge never explicitly said whether he would vote to preserve or get rid of the constitutional right to abortion.

When the abortion decision was announced Friday, Collins issued a statement that it was “inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”

Then Collins upped the ante, telling Carl Hulse of the New York Times that Kavanaugh “misled” her during their private meeting on Aug. 21, 2018, and provided notes her staff had taken where he said he respected precedent with regard to Roe.

“I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine,” Kavanaugh said, per the notes, which were also provided to The Early.

People close to Kavanaugh don’t dispute what he said in the meeting but emphasize he never promised not to overturn Roe

“He talked about precedent, he talked about settled law,” said one person who was in the Kavanaugh and Collins meeting. “He never indicated which way he’d rule if the case were before him.”

The person, who spoke on the condition of anonymity to describe the private discussion, said the two-hour meeting was one of his longest meeting with a senator and that Collins was “meticulously” prepared. The source added that the majority of Collins’ questions were about Roe.

Collins isn't buying the pushback.

“Obviously, we never said that Justice Kavanaugh explicitly promised not to overturn Roe. He repeatedly, however, discussed the importance of precedent in connection with Roe, referred to the undue burden test of the Casey decision, and stated that he was not a ‘rock-the-boat‘ kind of judge,” Collins spokeswoman Annie Clark said in a statement Sunday night. “How can a judge who describes himself that way vote to overturn a 50-year-old precedent that recognizes a constitutional right and has been reaffirmed?”

When Collins asked in the meeting if confirming him would lead to the elimination or erosion of choice, Kavanaugh responded, according to the notes: “Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law. I have demonstrated fidelity to these principles. I understand precedent and I understand the importance of overturning it. I am a firm adherent to the independence of the judiciary. I have been a force for stability. I am rooted in precedent.”

The question of what Kavanaugh said — and what he meant — is exposing raw tensions over the Supreme Court's decision to scrap Roe as well as over the confirmation process, during which for decades senators have allowed nominees to avoid giving direct responses to any number of important legal questions.

Sen. Joe Manchin III (D-W.Va.), a fellow moderate who works closely with Collins on many issues and who was the only Democrat to vote to confirm Kavanaugh, expressed similar unhappiness Friday with the two justices, saying he “trusted” them when they said they respected the precedent set by Roe.

Critics rolled their eyes and said the two senators heard what they wanted and should have known the conservative jurists would leap at the chance to overturn Roe despite their paeans to precedent.

What now?

Collins‘ vote to confirm Kavanaugh drew heavy criticism from Democrats at the time because he would have had trouble getting confirmed without her support. It was a top issue in her 2020 reelection campaign.

Now the right is taking aim at the senator.

“We weren’t in those meetings, but we’d be stunned if either Justice came close to making a pledge about Roe,” the Wall Street Journal Editorial Board wrote Sunday night in an editorial dismissing her complaint.

Kavanaugh appeared to address anticipated criticism that he ransacked judicial precedent with an entire section on stare decisis, or judicial precedent, in his concurrence in Dobbs v. Jackson Women’s Health Organization, which overturned Roe. 

“This Court’s history shows, however, that stare decisis is not absolute, and indeed cannot be absolute,” Kavanaugh wrote, pointing to Plessy v. Ferguson, the 1896 case that said segregation is acceptable but later overturned by Brown v. Board of Education. “And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent.” 

What can or will happen now? Probably not much, but some progressives are calling for action.

“I believe lying under oath is an impeachable offense,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) said on NBC’s “Meet the Press” on Sunday. “And what makes it particularly dangerous is that it sends a braking signal to al the future nominees that they can now lie to duly elected members of the United States Senate.”

Sarah Lipton-Lubet, the executive director of Take Back the Court, told The Early that Kavanaugh and Gorsuch should at least be called testify.

Democratic members of the Senate Judiciary Committee have not indicated whether they would take any action and their options may be limited.

“It is not clear if Congress has authority to investigate and punish judges’ behavior outside of the impeachment process,” says a 2005 CRS report on congressional oversight of judges and justices.

One precedent that remains intact? Silence from the justices. Kavanaugh and Gorsuch have not addressed the issue publicly. Neither responded to a request for comment placed with the Supreme Court's press office.

More on the fallout from Roe v. Wade being overturned from The Post:

Whither Build Back Better Light?

Democrats’ other, other problem: “With inflation on the rise and the threat of a recession looming, congressional Democrats are scrambling to revive their long-stalled economic spending package, hoping to deliver relief to Americans whose finances have soured during months of political bickering,” our colleague Tony Romm reports.

  • “The chief obstacle remains Sen. Joe Manchin III (D-W.Va.), a moderate whose opposition last year scuttled Biden’s agenda. Manchin has huddled privately and repeatedly with Senate Majority Leader Charles E. Schumer (D-N.Y.) in recent weeks, as Democrats labor anew to secure his must-have vote on a scaled-back bill that they hope to bring to the floor in July.”
  • “Democrats believe they will end up with a package far smaller in scope than they first envisioned — one focused on lowering prescription drug prices and combating climate change, with spending financed through changes to tax laws that also cut the deficit.”
  • Tick, tock: Democrats “have about three months to broker the sort of compromise that has eluded them for more than a year; otherwise, they may lose the ability to adopt the bill” via reconciliation.

At the White House

G-7 leaders seek price cap on Russian oil to ‘starve’ Putin’s war effort

Biden abroad: “President Biden and his Group of Seven counterparts plan to unveil additional economic measures Monday to pressure Russian President Vladimir Putin to end his war in Ukraine — including an effort to set a global price cap for Russian oil shipments,” The Post's Ashley Parker and Matt Viser report. The leaders will also hear from Ukrainian President Volodymyr Zelensky via a virtual address.

Meanwhile: “Russia has defaulted on its foreign currency debt for the first time in more than a century, as tough Western sanctions designed to punish Moscow for invading Ukraine restrict its ability to pay overseas creditors,” The Post's Rachel Pannett and Julian Duplain. "The country has the cash but is unable to get it to creditors because sanctions have cut Russia out of international payment systems." 

Domestic politics follow Biden to the Bavarian Alps: “Since taking office, the message undergirding nearly all of President Biden’s foreign trips has been that America is back. But as Biden began a five-day swing through Europe Sunday, he arrived in the Bavarian Alps bearing a less pleasant reality: America is backward, at least in the view of almost every foreign leader with whom he will meet this week, who responded to the news that the U.S. Supreme Court had overturned a woman’s right to abortion with abject dismay and alarm,” Ashley and Matt write.

What we're watching

⚖️ The Supreme Court this week will release rulings for two of the five major cases from this term, capping a fractious session marked by the reversal of Roe v. Wade. There are seven cases left on the docket.

  • West Virginia v. Environmental Protection Agency: The Supreme Court is expected to weaken the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. The move will also undercut the Biden administration’s ability to combat climate change.
  • Biden v. Texas: The court will issue a decision on the Biden administration’s attempt to end the “Remain in Mexico” immigration policy.

Looking ahead to October: The Supreme Court — with Ketanji Brown Jackson on the bench — will hear cases surrounding affirmative action, the Voting Rights Act and discrimination against same-sex couples for the 2022-2023 term.

The Media

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