WASHINGTON — Judge Brett M. Kavanaugh, President Trump’s nominee for the Supreme Court, told Senator Susan Collins that the 1973 Roe v. Wade decision legalizing abortion is “settled law,” Collins said Tuesday after emerging from a more than two-hour “courtesy visit” with the judge.
Collins, of Maine, and Senator Lisa Murkowski of Alaska are two Republican backers of abortion rights, and both say they are undecided on Kavanaugh. Their votes are critical to his confirmation. The term “settled law” refers to a precedent that is entitled to respect and does not necessarily indicate that precedent cannot be limited or overturned.
Collins’s statement may say less about Kavanaugh’s views on abortion than her ultimate vote, which appears to be leaning toward “yes.” She had already called him a “clearly” qualified nominee. The judge’s confirmation hearings are set to begin Sept. 4, with a vote possible before the end of next month.
Democrats immediately pounced on the “settled law” construction, saying it is a standard phrase employed to duck the real question: whether Roe was correctly decided.
“Let’s be clear; this is not as simple as Judge Kavanaugh saying that Roe is settled law,” Senator Chuck Schumer of New York, the Democratic leader, told reporters. “Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided.”
Kavanaugh’s views on abortion have raised intense concern among abortion rights advocates, in part because of a dissent he wrote in a 2017 case, Garza v. Hargan, that drew widespread attention last fall. Collins said she talked to Kavanaugh “at length” about the Garza case — the only abortion case in which he has rendered a decision.
In that decision, the US Court of Appeals for the District of Columbia Circuit, on which Kavanaugh serves, voted to allow an unauthorized 17-year-old in immigration detention to seek an abortion without delay; the Trump administration had wanted to first transfer her to an adult sponsor for guidance.
In his dissent, Kavanaugh wrote that while the appeals court was bound to obey Supreme Court rulings that said the Constitution protects a woman’s right to choose an abortion, those precedents nonetheless permit the government to apply “reasonable regulations that do not impose an undue burden.”
Collins has previously said that she would vote against any nominee who “demonstrates hostility” to Roe. In her meeting with Kavanaugh, Collins said, “we talked at great length about precedent and the application of stare decisis” — the legal principle of standing by precedent — “to abortion cases.”
“We talked about whether he considered Roe to be settled law; he said that he agreed with what Justice Roberts said at his nomination hearing in which he said that it was settled law,” she added.
That was a reference to Chief Justice John G. Roberts Jr., who testified before the Senate Judiciary Committee in 2005 that Roe is “settled as a precedent of the court, entitled to respect under principles of stare decisis.” However, he added, those principles “explain when cases should be revisited and when they should not.”
Beyond abortion, Collins said the two spoke about executive powers, the judge’s judicial philosophy, and which judges he admires most. They also discussed gun rights, including the so-called Heller case, a highly publicized 2011 case involving a challenge to a District of Columbia law that required gun owners to register their weapons and banned possession of semi-automatic rifles. (The case was a follow-on to an earlier one, District of Columbia v. Heller, that resulted in a landmark Supreme Court ruling in 2008.)
While the appeals court upheld those limits, Kavanaugh dissented, arguing that while the government may ban fully automatic machine guns, a ban on semi-automatic rifles should be unconstitutional, because they “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.”
The Supreme Court ultimately decided that the Second Amendment’s right to bear arms applied to individuals, not simply to those in a “well-regulated militia.”
Calling the session “very productive” and “very informative,” Collins said she intended to wait until after Kavanaugh’s confirmation hearings to decide whether to support him.
“You never know what questions are going to come up at a Judiciary Committee hearing where 21 individuals will be questioning him,” she said.
In addition to Collins, Kavanaugh was to begin having courtesy visits with the Democrats who have been extremely critical of him, including Schumer. He intends to meet with Murkowski on Thursday.