With President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court, Americans are about to get an earful from California. And if we hope to hold on to our constitutional right to decide for ourselves when and whether to have children, that’s good.
Sens. Dianne Feinstein and Kamala Harris of California are two of only four women on the Senate Judiciary Committee, which will hold the confirmation hearings. They will, and should, have a lot to say about Trump’s choice, who could be the fifth vote on the court to further limit – or even eventually overturn – Roe v. Wade, the landmark 1973 ruling that legalized abortion.
Feinstein, the ranking Democrat on the Judiciary Committee, voted against confirming Kavanaugh as a federal appeals court judge in 2006, but was on the short end of a 57-36 vote.
Tuesday, Feinstein and Harris joined other Democratic senators in a rally in front of the Supreme Court building.
“President Trump has been crystal clear that he would put ‘pro-gun’ and ‘pro-life’ justices on the court and that Roe v. Wade would be overturned ‘automatically,’ ” Feinstein said. “Brett Kavanaugh appears to meet all of President Trump’s promises for how his candidate will rule on specific issues.”
Harris didn’t wait long after Monday night’s announcement by Trump to issue a statement opposing Kavanaugh’s nomination, saying that he “represents a direct and fundamental threat” to the promise of equal justice under the law. “Judge Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist,” she added.
Planned Parenthood and other advocacy groups are calling on the Judiciary Committee to get the nominee on the record supporting a “personal liberty standard” – that the Constitution protects the right of Americans to make decisions about their bodies, including abortion, and personal relationships, including gay marriage.
The swing vote upholding those rights has been Justice Anthony Kennedy of Sacramento, who announced two weeks ago that he will retire July 31 after 30 years on the court. (Trump’s first Supreme Court pick, Neil Gorsuch, replaced another conservative, the late Antonin Scalia).
While Kavanaugh will likely try to dance around questions on those issues, there’s little doubt he would vote with the conservative majority to further restrict abortions. Trump promised to pick anti-abortion justices during the campaign, and like all the other potential nominees on Trump’s short list, Kavanaugh was vetted and approved by the Federalist Society, an influential group of conservative lawyers.
Senators can’t ignore that political reality, even as they properly give the nominee a fair hearing and consider their record and temperament for the lifetime appointment.
Kavanaugh, 53, has been on the appeals court based in Washington, D.C., for 12 years. A former law clerk to Kennedy, he has two Yale degrees and served in the George W. Bush administration and in the Justice Department. He has argued that presidents should not have to deal with civil lawsuits, criminal investigations or even questions from prosecutors while in office. That probably appeals to Trump, who consistently complains about the investigation by special counsel Robert Mueller. If confirmed, Kavanaugh would be the fifth Catholic on the court, joining Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Clarence Thomas.
Democrats are pushing for Trump’s nomination to be decided after the November election, but without support from Senate Republicans, that isn’t going to happen. At the same time, a confirmation vote isn’t a done deal, either. Republicans hold a slim 51-49 majority, and Sen. John McCain of Arizona, who is being treated for brain cancer, may not vote.
So while Feinstein and Harris will play key roles, two other women in the Senate who support abortion rights – Republicans Susan Collins of Maine and Lisa Murkowski of Alaska – could hold the deciding votes if Democrats stick together. That’s not a sure thing, however, with intense pressure on Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, who are all seeking re-election in November in states carried by Trump in 2016.
Because the next justice could move the court for a generation, this nomination will be a political battle that could easily surpass the biggest fights of the Trump presidency, over Obamacare and tax cuts. Feinstein and Harris can, and must, be clear and loud voices for Californians in that debate.