Calvin Freiburger says some nice things about me here, but disagrees with a recent post of mine about how Judge Kavanaugh has handled questions about abortion. I think a fair summary of Freiburger’s view is that he wishes that Kavanaugh had said that Roe was a badly reasoned mistake, if the judge so believes, and that Trump had nominated someone else, if he does not so believe.
Let me see if I can at least narrow our disagreement.
I think a Supreme Court nominee should decline to make a commitment or appear to make a commitment to rule in a particular way in a future case. That defensible norm includes not making a commitment to re-affirm or overrule a precedent.
But nominees have extended that norm to preclude giving forecasts, hints, and previews — as Justice Ginsburg put it at her confirmation hearings — in a way that is not justified. Senators can reasonably ask nominees what they think provisions of the Constitution mean and expect answers. A nominee who said that Roe v. Wade had shaky reasoning but that it now had some force as precedent might jeopardize his confirmation, depending on the line-up of senators, but would not be saying anything improper.
So I would not “defend the standard practice of refusing to give a straight answer on past cases,” as Freiburger describes my post. I can’t much fault Kavanaugh (or Gorsuch) for following the modern bipartisan convention of nominees, but I think that convention is mistaken and ought to change. I thank Freiburger for helping me clarify my view on what is, I think, a somewhat tricky question.
One last point: Freiburger contrasts Kavanaugh with Judge Amy Coney Barrett. One reason President Trump did not select her was the fear that Senators Susan Collins and Lisa Murkowski would be more likely to reject her over abortion. Barrett is “seen as a ferocious opponent of abortion,” according to three reporters writing in the New York Times a few days ago.
The idea that Barrett would be a surer bet to vote to overrule Roe is based on her being a devout Catholic with a lot of children. It’s not based on her ever having said anything on the record about abortion or Roe that goes beyond what Judge Kavanaugh has said. I suspect that if she had been the nominee, she would have offered the same non-answers to questions about Roe that Kavanaugh and Gorsuch did, and the same affirmations that precedents deserve some respect but not unlimited respect. Which is one reason I thought the concern that she would lose a Senate vote was overblown.