If there was a theme to Supreme Court nominee Brett Kavanaugh’s second day of confirmation hearings, it would be “precedent.”
President Trump’s controversial pick for the seat previously held by longtime Justice Anthony Kennedy used the word repeatedly as he fielded questions from both Republican and Democratic members of the Senate Judiciary Committee. Kavanaugh made the point that notwithstanding his previously expressed critiques of several key precedential rulings, his opinions as a judge are informed not by his personal views but by the legal principles established by the Supreme Court.
Throughout these hearings, Democrats have been seeking to put Kavanaugh on the record about how he would vote on cases that might turn on Supreme Court precedents with which he’s publicly — and controversially — disagreed, notably Roe v. Wade. Though he said on Wednesday that the landmark 1973 ruling that legalized abortion was “important precedent,” some Democrats are wary of what they suspect is his willingness to disregard past opinions.
For example, Democratic Sen. Dianne Feinstein called out Kavanaugh’s dissent, as a member of the D.C. Circuit, in a case last year regarding whether a 17-year-old undocumented immigrant in federal custody should be allowed to obtain an abortion.
“You argue that even though the young woman had complied with Texas parental notification law and secured an approval from a judge, she should nonetheless be barred,” said Feinstein, telling Kavanaugh that, in his dissent in the case known as Garza v. Hargan, “you ignored, and I believe mischaracterized, a Supreme Court precedent.”
Feinstein took issue with Kavanaugh’s opinion, which would have required the young woman to wait for a government-approved “sponsor” to provide a “support network of friends and family,” running the risk, she said, that the process would extend past her 20th week of pregnancy, the legal limit in Texas, where she was being held. Feinstein asserted that Kavanaugh’s dissent amounted to rewriting a Supreme Court precedent that established the judicial bypass process for pregnant minors in need of an abortion who cannot obtain parental consent, “requiring courts to determine whether a young woman had a sufficient support network when making her decision.”
“This reason, I believe, demonstrates that you are willing to disregard precedent,” Feinstein said.
Though abortion is considered the central issue at play in the Garza case, it’s also just one example of a case involving immigrants in which Kavanaugh’s commitment to precedent and existing statutes has come under scrutiny.
During a particularly pointed series of questions Wednesday afternoon, Democratic Sen. Dick Durbin highlighted Kavanaugh’s 2008 dissent in a case concerning the rights of undocumented immigrant workers at a slaughterhouse to unionize.
“The fact that you were a dissenter and everyone else saw it the other way should give us pause when you say you only follow precedent,” said Durbin.
The majority of Kavanaugh’s colleagues on the D.C. Circuit Court of Appeals ruled in favor of the undocumented workers in this case, Agri Processor Co. Inc. v. National Labor Relations Board, citing both the “plain language” of the 1935 National Labor Relations Act, which guarantees the basic rights of private sector employees to join unions and demand better wages and working conditions through collective bargaining, as well as the 1984 Supreme Court ruling in a case known as Sure-Tan Inc. v. NLRB, explicitly affirming that, “since undocumented aliens are not among the few groups of workers expressly exempted by Congress” under the National Labor Relations Act, “they plainly come within the broad statutory definition of ‘employee.’”