Kavanaugh did have an interesting exchange with Republican Senator Ben Sasse about precedent, however. As Damon Root pointed out in the magazine Reason, Sasse got Kavanaugh to explain why he thought Brown v. Board of Education, which overturned the ruling that African Americans could be treated as “separate but equal” in Plessy v. Ferguson, was correctly decided. Kavanaugh praised the way the lawyer Thurgood Marshall, a future justice, litigated segregation cases in the lead-up to Brown, creating an incremental argument that eventually prevailed at the Supreme Court.
The exchange provided a useful look into Kavanaugh’s legal thinking about an issue that will inevitably come up during his time on the Court, if he is confirmed: All justices eventually face the question of whether to overturn past Supreme Court precedents, and no matter their ideological background, the temptation to do so is strong. Although they did not often succeed at getting definitive answers from Kavanaugh, senators have at least created a public record of his claims to judicial independence, which, if he is confirmed, may prove interesting as his record as a justice expands.
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