Washington – Connecticut Sen. Richard Blumenthal, who has already decided to vote against the Supreme Court nominee, Wednesday had his first chance to tussle with Judge Brett Kavanaugh on a series of issues that included abortion rights and presidential powers.
Blumenthal followed up on the questioning of fellow Judiciary Committee Democrat, Richard Durbin of Illinois, about Kavanaugh’s involvement in Garza v. Hargan, the only abortion case the nominee has ruled upon. That case involved an undocumented teenager in government custody seeking to terminate her pregnancy.
During an often testy exchange with the judge, Blumenthal said Kavanaugh’s dissent in the decision that granted the teenager a temporary leave from government custody to obtain an abortion was a “signal that you were prepared to overturn Roe v. Wade,” the 45-year-old Supreme Court case that gave American women the constitutional right to an early term abortion.
Blumenthal said the dissent in the Garza case – in which Kavanaugh said his colleagues on the bench had decided “that unlawful immigrant minors have a right to immediate abortion on demand” — was a coded message to the White House. Blumenthal said the phrase “abortion on demand” is used by “the anti-abortion community to refer to repeal of Roe v. Wade.”
Blumenthal said Kavanaugh wanted to make clear he could pass the “litmus test” President Donald Trump used in seeking a new Supreme Court justice — someone who would give the high court the majority needed to overturn Roe v. Wade.
Kavanaugh said that was not the case. He said he was chosen to fill the seat of retiring Justice Anthony Kennedy because “various people said I should be considered,” including White House Counsel Don McGahn who sat behind Kavanaugh as the nominee was in the hot seat for more than 10 hours Wednesday.
“I appreciated their support,” Kavanaugh said of those White House staffers.
Kavanaugh also said the teen’s age in the Garza case was critical to his ruling and that the Supreme Court has upheld parental consent laws that can delay abortions.
Blumenthal also tried to wrest a commitment from Kavanaugh to recuse himself from any Supreme Court cases involving Trump’s potential criminal or civil liability. Blumenthal said it would be a conflict of interest for Kavanaugh to rule in a case directly affecting the president who named him to the high court.
“We’re in uncharted territory,” Blumenthal said.
Kavanaugh refused to make any commitment, saying it would undermine his independence as a judge to say whether he would recuse himself.
Blumenthal said he was “troubled and disturbed” by Kavanaugh’s response.
Blumenthal also asked if Kavanaugh believed the president has the authority to determine the Affordable Care Act is unconstitutional, even if the Supreme Court rules to protect the law.
A Texas court on Wednesday heard a case brought by 20 “red” states that argues key provisions of the ACA are unconstitutional, including health insurance coverage protections for people with pre-existing medical conditions.
Kavanaugh dodged that question, as he did most of the questions lobbed by panel Democrats. He also sparred with Blumenthal about his dissent on a case that upheld the District of Columbia’s ban on semi-automatic weapons.
While Democrats tried to find a crack in Kavanaugh’s façade Wednesday, Republicans on the Senate Judiciary Committee praised the nominee’s legal record and personal integrity.
Sen. Ted Cruz, R-Texas, pointed out how many times Kavanaugh voted with fellow D.C. Circuit Court Chief Judge Merrick Garland, President Obama’s nominee to the Supreme Court who was blocked by Senate Republicans.
“You voted together 93 percent of the time,” Cruz said.
Trump on Wednesday also praised Kavanaugh.
“I have watched his remarks, I have watched his performance, I’ve watched his statements, and honestly, they’ve been totally brilliant,” Trump said. “I think the other side is grasping at straws.”
Kavanaugh will likely be confirmed. On Wednesday, Sen. Jon Kyl, R-Ariz., one of Kavanaugh’s mentors in the confirmation process, was sworn in to replace Sen. John McCain, who recently died of brain cancer.
With Kyl in the Senate, Republicans again have a 51-49 majority over Democrats and the GOP appears united in their support of the nominee.
In addition, two Democratic senators in tough re-election races in states Trump won, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, said Wednesday they have not heard anything that would prompt them to vote against Kavanaugh.
Kavanaugh’s confirmation hearing will continue Thursday with more questioning of the nominee.