Schumer says he was not reassured by Kavanaugh on Roe, Casey decisions

WASHINGTON – Senate Minority Leader Chuck Schumer said that Supreme Court nominee Brett Kavanaugh may have told other senators Tuesday that the court's rulings upholding abortion rights are “settled law,” but he refused to say if those cases had been correctly decided.

Schumer said he told Kavanaugh he had a “special obligation” to state his views of Roe v. Wade and Casey v. Planned Parenthood because President Donald Trump said he would only pick nominees who would overturn Roe.

But, Schumer said, “He would not give me any reassurance that he believed that Roe or Casey were correctly decided or should be left alone.” 

Earlier Tuesday, Sen. Susan Collins (R-Maine), who is one of two undecided Republicans on the nominee, said Kavanaugh told her in their two-hour meeting that he agreed with Chief Justice John Roberts’ comment on Roe v. Wade in his 2005 confirmation hearings.

“We talked at great length about precedent and the application of stare decisis to the abortion cases,” Collins said after the two-hour meeting, the longest and possibly most important of six visits he had with senators. Stare decisis means justices should stand by the court's previous decisions.

“We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at this nomination hearing, at which he said it was settled law,” Collins said.

Schumer said, “He did not say that to me. But that is not the important or decisive question. Everything the Supreme Court decides is settled law until the majority of the Supreme Court decides to unsettle it.”

After being nominated to be chief justice in 2005, Roberts was asked if he would agree with his statement during his hearings to be a D.C. Circuit Court judge that “Roe is the settled law of the land.” Roberts replied to that question by saying, “It's settled as a precedent of the court, entitled to respect under principles of stare decisis.”

But even supporters of Kavanaugh and Roberts interpreted the comments by Roberts back then as more of a strategic decision aimed at winning the support of Sen. Arlen Specter (R-Pa.), an abortion rights backer, while reassuring foes of abortion.

“It is a testament to Roberts’s skills as an advocate that his remarks at his confirmation hearing on abortion and stare decisis have been understood by Specter and many other supporters of Roe as suggesting that he would not vote to overrule Roe,” wrote Ed Whelan of the anti-abortion Ethics and Public Policy Center after Roberts made those comments.

“What seems not to have been noticed is that Roberts in fact deftly repudiated Specter’s notion that Roe is some sort of ‘super-duper precedent’ entitled to ‘super stare decisis,’” Whelan added. “In so doing, he marked the path for the eventual overruling of Roe.”

Democrats have pinned their hopes for defeating the nomination of Kavanaugh, a conservative appeals court judge, on Collins and Sen. Lisa Murkowski (R-Alaska), both of whom support abortion rights and who voted against scrapping the Affordable Care Act.

Kavanaugh’s confirmation hearing is scheduled for Sept. 4, and Republicans hope to confirm him in time for him to take a seat on the court as it begins its new term on Oct. 1.

To underline Kavanaugh’s opposition to abortion, Sen. Kirsten Gillibrand (D-N.Y.) and two other Democratic women senators held a news conference before the Collins meeting asserting that Kavanaugh would be the decisive vote in overturning Roe v. Wade.