Discussing Kavanaugh Confirmation
Attorney Page Pate, who is recognized as a constitutional attorney and legal analyst, is often contacted by the media to discuss legal issues that appear in the news. In this case, CNN contacted Page to discuss the confirmation hearing of Brett Kavanaugh as the next Justice of the Supreme Court.
One of the biggest issues being raised in the confirmation of Judge Kavanaugh is abortion laws under Roe v. Wade and whether there is the possibility of the Supreme Court overturning those laws if there is a conservative majority on the Court. When asked for his thoughts on this, Page responds that “Settled law is settled for lower court judges. It is not at all settled for Supreme Court Justices. And since he wrote that, there’s now another vote to overturn Roe vs. Wade. So, with a fifth vote, I think it is certain that a Justice Kavanaugh would look at the issue very differently than a Judge Kavanaugh. Because once you’re on that Supreme Court, you get to make the call.”
In discussing the importance of a nominee’s personal views on Roe v. Wade, Page comments that he thinks it is very important and “… if the Democratic Senators will bear down on this issue and say, “Look, you’re telling us your personal opinion does not weigh into your decisions. Well, that may be true while you’re a lower court judge. But now, you have to recognize, you have to acknowledge that once you’re on the Supreme Court, your personal opinions do make a difference, how you view the Constitution, how you view Roe vs. Wade, because you will then have a vote to change that precedent if you decide to exercise it.”
Wolf: An hour after the hearing began, the Chairman, Senator Chuck Grassley, made his opening remarks. So let’s discuss all of this critically important information. Gloria Borger, Eliana Johnson are still with us. Page Pate is joining us now as well, our legal analyst. Gloria, several of the Democrats on the committee, they backed Booker, saying they would also release some confidential emails despite the Senate rules.
Gloria: Committee confidential, as they’re called. And their reason for doing it is, obviously, they wanna raise questions. They wanna raise questions about…particularly about Roe vs. Wade, and whether or not Judge Kavanaugh believes that it is so-called settled law. And there is one line in this released email where he had written that, “I’m not sure that all legal scholars refer to Roe as the settled law of the land, at the Supreme Court level, since the Court can always overrule its precedent, and three current Justices on the court would do so.”
Well, that is true. And we also know that everybody talks about settled law, and everybody…and precedent, and everybody knows that precedent can be overturned if the Court wants to. But again, they were raising this to say, “Look, Roe is in danger and this is a bit of proof about why Kavanaugh, who is so important, replacing Kennedy here, could be a key vote in overturning Roe.”
Wolf: But, Page, and you’re a legal analyst. He was right. There are legal scholars who agree that Roe v. Wade could be, if there’s a majority in the Supreme Court, overturned.
Page: Oh, absolutely. Settled law is settled for lower court judges. It is not at all settled for Supreme Court Justices. And since he wrote that, there’s now another vote to overturn Roe vs. Wade. So, with a fifth vote, I think it is certain that a Justice Kavanaugh would look at the issue very differently than a Judge Kavanaugh. Because once you’re on that Supreme Court, you get to make the call.
Wolf: You know, Eliana, I want to play a clip. This is the ranking Democrat, the top Democrat on the Judiciary Committee, Senator Diane Feinstein, who said this on this sensitive issue of Roe v. Wade and Kavanaugh. Listen to this.
Judge Kavanaugh: So, thank you, Senator Feinstein. In that draft letter, it was referring to the views of legal scholars. And I think my comment in the email was that might be overstating the position of legal scholars. And so, it wasn’t a technically accurate description in the letter of what legal scholars thought. At that time…
Wolf: I’ve actually read these memos that were confidential, but now they’re out. They’ve been released by some of these Democratic Senators. The question is, on the sensitive issue of abortion rights for women in the United States, do you think any of this is gonna have an impact on two moderate Republican Senators, Lisa Murkowski, Susan Collins, who are very important on this issue of Roe v. Wade, and may convince them, because of this disclosure of what he said, that they may vote against this confirmation?
Eliana: I don’t think this will be enough, but you’re exactly right. The ultimate goal in publicizing these emails is to suggest that Republicans and Kavanaugh have been hiding the ball about what his true views on Roe v. Wade are, and that if he is confirmed to the Court, he will be a vote to overturn this. I don’t think this email, which really is a factual statement about precedent and the views of legal scholars, will be enough to convince Lisa Murkowski of Alaska and Susan Collins of Maine that Kavanaugh…
It says nothing about what Kavanaugh’s personal views on the issue are or what he might do if he’s nominated and confirmed to the Court. So I don’t think it will be enough to get them to turn on their own party and to scuttle the nomination. If this is the worst thing Democrats have on him, I just don’t think it will be sufficient.
Wolf: Because it looks like he has the votes, especially…he needs 50 votes in the U.S. Senate. There are 51 Republicans, 49 Democrats, including the two Independents who vote with the Democrats. And there are at least three moderate Democrats…
Wolf: …who may vote to confirm…
Gloria: In red states.
Wolf: …as well. So if it’s a simple majority, it looks like he hasn’t had a major blunder yet.
Wolf: And it looks like he’s on his way.
Gloria: He hasn’t. And in this memo, you know, he didn’t state what his personal views were. And that’s sort of important. He didn’t say, you know, “I personally believe that this shouldn’t be considered settled law or shouldn’t be considered precedent.” He was sort of remarking on what legal scholars were saying. And so, I really…I, you know, I agree with Eliana. I don’t see it as sort of dispositive here, that it would really kinda kill the nomination.
Page: You know, I think this is very important, though. And if the Democratic Senators will bear down on this issue and say, “Look, you’re telling us your personal opinion does not weigh into your decisions. Well, that may be true while you’re a lower court judge. But now, you have to recognize, you have to acknowledge that once you’re on the Supreme Court, your personal opinions do make a difference, how you view the Constitution, how you view Roe vs. Wade, because you will then have a vote to change that precedent if you decide to exercise it.
Wolf: Let’s not forget, Judge Kavanaugh, if confirmed, and it looks like he will be confirmed, could spend 30 or 40 years…
Wolf: …he’s what, only 53 years old, on the U.S. Supreme Court and have a huge impact well beyond, you know, obviously, the Trump administration. Guys, stick around. There’s more. We’re…
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.