Could Brett Kavanaugh overturn Roe once he gets to the Supreme Court? The appellate judge will begin his confirmation hearing with the Senate Judiciary Committee with this very question as the clear subtext of his opposition. Speaking on Fox News Sunday, Sen. Lindsey Graham cut through the equivocations on both sides by pointing out that the high court overturns precedents occasionally — but they don’t do it will-nilly, either. Graham tells Chris Wallace that a jurist who is unwilling to reconsider past decisions isn’t worth voting for confirmation at all:
WALLACE: One issue that pro-choice senators of both sides have pressed Kavanaugh on in their meetings with him on Capitol Hill is abortion. And Kavanaugh reportedly told them that Roe v. Wade is, quote, “settled law”. Is that a firm commitment in your regard, in your view, to not overturn Roe? And if it is a firm commitment, how can you as a pro-life senator support him?
GRAHAM: I wouldn’t vote for anybody that says that every decision the Supreme Court cannot be revisited. They revisit through a process. There’s a process of overturning long precedent. There’s a four-part test you have to apply.
From my point of view, what he will do is when that case comes, if it ever does, you just don’t wake up one day and say, hey, I’d like to overturn Roe v. Wade. If there’s a conflict that makes it to the Supreme Court, he will apply the test of precedent to that decision, Roe v. Wade, and every other precedent.
WALLACE: But to make it clear, you’re saying you don’t view his statement, for instance, to Senator Collins, a pro-choice Republican, that it settled law means that therefore it can’t be re-examined and conceivably overturn?
GRAHAM: He would be disqualified, in my opinion, if you would not listen to both sides of the story and decide accordingly. This idea that Roe v. Wade is going to be challenged at state level, there are all kinds of laws out there. Some may work their way up to Supreme Court. He will give great deference I’m sure to Roe v. Wade. But it can be overturned like every other decision but that will be up to the facts on the record.
The Supreme Court doesn’t make a habit of reversing previous precedent, but it certainly happens. The court reversed Abood in the Janus case in this past session, for instance, in ruling that public-employee unions could not require the payment of fees from non-members. Abood was decided in 1977, just four years after Roe, and had been a key part of union relations for forty years prior to Janus. Granted, that example of dispensing with stare decisis probably won’t please Senate Democrats any more than a reversal of Roe, but it’s silly to treat a reversal as an outright offense to the rule of law. We don’t abide by Plessy any more, either, and for good reason.
Graham’s nuanced point, however, will likely get lost tomorrow as Democrats blur lines to advance their Chicken Little campaign against Kavanaugh. In the video compiled above by the Washington Post, Dick Durbin and Amy Klobuchar are already hard at work on that project. Durbin suggests that the investigation into Donald Trump should postpone all consideration of Supreme Court justices, forgetting — as Graham points out — that the Senate confirmed Stephen Breyer to the Supreme Court while the Whitewater probe into Bill Clinton was under way. Klobuchar claims that Kavanaugh said he would strike down the “special counsel” law, which is completely untrue; he said he would have voted to undo the independent counsel law, a much different statute, and proposed at the same time to replace it with something very similar to the special counsel statute currently in use.
Most of these points have been debunked weeks ago, but don’t expect that to stop Democrats from beating the same dead horses all the way through Kavanaugh’s hearing and beyond. Will that stop Kavanaugh from getting confirmed? Graham doesn’t think it’s enough to keep all of the Democrats in line:
GRAHAM: If he does well at the hearing he will get, my belief is 55 or higher. If he does well enough, I’m sure he will do well.
WALLACE: When you say 55, you’ve got to have 51 Republicans, with the appointment of McCain’s replacement. So, you are saying as many as four Democrats?
GRAHAM: Well, that’s 55.
That’s as good an over-under as one needs. I’d bet the under, but not by much. Kavanaugh will take his seat on the Supreme Court on the first Monday of October, and Democrats will have to explain their utter failure to predict the sky remaining in place.