Kavanaugh confirmation hearings: Abortion, immigration and other Catholic concerns

Brett Kavanaugh, President Trump's Supreme Court nominee, leaves the Senate Judiciary Committee room for a short break on the third day of his confirmation hearing, on Capitol Hill in Washington, Thursday, Sept. 6, 2018. (AP Photo/J. Scott Applewhite)

The Senate Judiciary Committee continued an at-times-raucous confirmation process for Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, on Sept. 6. Since hearings began on Sept. 4, they have been marked by daily interruptions—in the audience and from the dais—something Professor Richard Garnett of the University of Notre Dame Law School regrets. “Our confirmation practices and norms have been degrading steadily for the past quarter-century, since the Judge Robert Bork nomination, and it is hard to see a way out of the current partisan morass,” he said in an email to America.

Controversies over documents related to Judge Kavanaugh’s employment as an associate White House counsel and later White House Staff Secretary during the George W. Bush administration upended the first day of the process. Many documents were withheld from senators as “confidential” and 42,000 pages of other documents were released to senators just hours before testimony began on Sept. 4, provoking a fiery partisan fracas.

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Sporadic protests have disrupted each day of the hearings so far. One man yelled, “This is a democracy, not the mafia,” as he was dragged out of the hearing room on Sept. 5. Senator Charles E. Grassley, Republican of Iowa, scolded Senate Democrats on Sept. 5 for the previous day’s disruptions: “In the audience, 70 people were arrested yesterday who were following their lead.”

The first round of questioning that day lasted well into the night. The second round continued into the evening on Sept. 6 after the morning became mired in questions about access to and confidentiality of documents.

Sister Simone Campbell, the executive director of the Network lobby for Catholic social justice, does not like what she has seen so far. She told America that it is “quite disappointing that even when asked a very direct question, [Judge Kavanaugh] doesn’t respond.”

A letter signed by Sister Campbell and 1,550 other Catholic faith leaders was released before the hearings began. It called for senators to consider Judge Kavanaugh’s nomination with respect to five areas: health care, immigration, labor rights, voting rights and the death penalty. It also urged U.S. Catholics to prioritize the real-world implications of judicial appointments.

“As Catholics, we believe that any government official—including a Supreme Court Justice—must be concerned with the needs of people who are marginalized, not just the rich and powerful or a member of one’s own political party,” the letter writers said.

Pointed questions raised by committee members touched on abortion. Early Wednesday morning, Senator Dianne Feinstein, a Democrat from California, referenced Judge Kavanaugh’s previous comments on Roe v. Wade when she asked, “What do you mean by ‘settled law’?”

Judge Kavanaugh replied that Roe v. Wade is an “important precedent” and “has been reaffirmed many times over the past 45 years.”

Pressed by Senator Lindsey O. Graham, Republican of South Carolina, on revisiting prior rulings, the judge said, “I listen to all arguments.”

Pressed by Senator Lindsey O. Graham, Republican of South Carolina, on revisiting prior rulings, the judge said, “I listen to all arguments.”

On Sept. 6, Senator Ted Cruz, Republican of Texas, asked about the case Priests for Life v. U.S. Department of Health and Human Services, in which the judge penned a dissenting opinion that would have allowed employers to exempt themselves from providing contraceptive coverage. “Under the Religious Freedom Restoration Act,” Judge Kavanaugh explained, “the question was first was this a substantial burden on their religious exercise, and it seemed to me quite clearly it was.”

Labor and immigration issues also featured prominently as the senators grilled the Supreme Court candidate. Democrats charged that Judge Kavanaugh’s judicial opinions and commentary reflect judgment that is outside the mainstream, while Republicans argued his record underscores his “independence and impartiality.”

Senator Richard J. Durbin, Democrat of Illinois, mentioned Agri Processor v. National Labor Relations Board, a case against an Iowa wholesaler of kosher meat that came before Judge Kavanaugh during his time on the United States Court of Appeals for the Washington, D.C., circuit court. The company employed hundreds of undocumented immigrants who experienced “12-hour shifts without overtime pay, exposure to dangerous chemicals, sexual harassment and child labor.” The majority opinion said that Judge Kavanaugh’s dissent, which held that Agri Processor’s immigrant workers should not be allowed to unionize, would lead to an “absurd result.”

Mr. Grassley said that Judge Kavanaugh rules “for the party that has the law on their side” and that he “will vindicate the rights of those who are less powerful in our society.” He cited a case in which the judge ruled for a union against Walmart on the grounds that the company had engaged in unfair labor practices.

Mr. Garnett wrote in an email to America that “senators’ behavior and misleading charges are miseducating Americans about the role of the court and the job of a judge.”

“One of the biggest mistakes people make about the court, and about justices, is thinking that the characteristics of the parties in a case should determine the court’s ruling,” he said. “Judges are supposed to evaluate legal arguments, not litigants.

“I cannot speak to the merits of the Agri Processor dissent,” Mr. Garnett said. “Judges dissent all the time, of course, and the fact that, in a particular case, a majority disagreed with Judge Kavanaugh tells us nothing about Kavanaugh’s intelligence, experience or qualifications.”

Judge Kavanaugh’s religious faith briefly came into focus during the hearings. On Wednesday, Mr. Graham requested that Judge Kavanaugh describe “the difference between Brett Kavanaugh the man and Brett Kavanaugh the judge.”

Judge Kavanaugh detailed his volunteer work with Catholic Charities’ St. Maria’s Meals program in Washington, D.C., and his membership on the board of Washington Jesuit Academy.

“We are all God's children. We are all equal,” he said. “People have gotten there because maybe they have a mental illness; maybe they had a terrible family situation; maybe they lost a job and had no family. But every person you serve a meal to is just as good as me or better.

 

“Standing in the shoes of others...we could all be that homeless person. We could all be that kid who needs a more structured educational environment.”

He also quoted Matthew 25: “For I was hungry, and you gave me something to eat; I was thirsty, and you gave me something to drink; I was a stranger, and you invited me in; naked, and you clothed me; I was sick, and you visited me; I was in prison, and you came to me.”

One line of questioning concerned Judge Kavanaugh’s employment in the Bush White House and broached issues like torture and mass surveillance. Asked by Senator Patrick J. Leahy, Democrat of Vermont, about “warrantless surveillance,” Judge Kavanaugh said: “There was so much going on in the wake of Sept. 11…. There were so many issues to consider for the president and for the legal team.” He said several times that “every day for the next seven years was Sept. 12, 2001.”

Mr. Durbin charged that Judge Kavanaugh lied during his 2006 District Court confirmation hearing when he said he “was not involved and am not involved in the questions about the rules governing detention of combatants.”

Senators Cory A. Booker and Kamala D. Harris, Democrats of New Jersey and California, wanted to discuss voting rights—another topic underlined in the Network letter. Mr. Booker compared Judge Kavanaugh’s vote to uphold a South Carolina voter I.D. law to Jim Crow-era poll taxes.

The Senate next will question a number of legal experts, some of whom support and others oppose the judge’s nomination.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
J Cosgrove
2 months ago

There is only one thing the Democrats care about and that is abortion. Hearings provide opportunity for Democrats to show how amazingly civil they are when opposing anything. The author left out Senator Booker's most elegant moment on Judge Kavanaugh's racist comments. I wonder why.

Sister Simone Campbell should be petitioning congress not a judge about marginalized people. Judges interpret laws not make law.

rose-ellen caminer
2 months ago

They can use all the legalisms they want for thirty hours straight to tell you that they "don't make laws,but interpret laws", but when abortion was illegal and now it's legal,when gay marriage was illegal , but now its legal,when Plesy v. Ferguson was once the law of the land , but now the Brown decision is, etc., etc., it's because the Supreme Court's "interpretation" of "law'" is defacto ; making laws. The Constitution is like the Bible ; it can be interpreted to mean anything you want it to mean; judges "follow precedents", [ Kavanaugh's mantra] except when they choose not to.

Michael Burke
1 month 3 weeks ago

the Bible has a logic to it ( understood via the Catholic tradition, n the Magisterian)

the constitution give rights to man but has no right to interfere in Gods law
which is above mans law

these confusions, as u note, are result of arrogance

Rosemari Zagarri Prof
2 months ago

Republicans are SOOOO much more caring. They care about helping rich people, giving tax breaks to corporations, making sure immigrants don't get fair--or even humane--treatment, stripping black people of their voting rights, and oppressing women. What a record of caring to be proud of!!! Way to go with Kavanaugh!!!

J Cosgrove
2 months ago

They care about helping rich people

Why do most of the rich and the elites vote for Democrats? Just about everything you say is nonsense. I hope you are not teaching anyone with these biased erroneous opinions.

Stuart Meisenzahl
2 months ago

Professor
For an academic you have an unusual propensity to catagorize, engage in broad sweeping allegations, and reach "conclusions" , actually just accusations, without citing any facts. You then proceed to engage in a guilt by association attributing all of the foregoing to Kavanaugh who is a judge honored by his profession (See the ABA's Highest Endorsement) and as to whom you also fail to recite a single fact to support your shabby "hit and run".

Heaven help your pupils if they are subjected to similar academic abuse

John Rysavy
2 months ago

As usual AM writers view an issue from the left and obscure the reality of what many of us listened to for many hours and came away with a different point of view.

Tim Donovan
2 months ago

I strongly believe that our elected representatives are charged with making laws, not judges. The role of judges is to interpret laws in accord with the Constitution. However, judges are human beings (to state the obvious) so I admire Judge Kavanaugh and think it's significant that he volunteers serving meals to the homeless, and tutors low income students at a Catholic middle school. I also think his belief that "We are all God's children. We are all equal," and his understanding of the circumstances that result in people's situations in life ( homeless due to mental illness or losing a job, or children who don't do very well in life due to a poor education) is prescient. I agree with Sister Campbell that matters related to health care, immigration, labor rights, voting rights and the death penalty are important legal issues, although I don't necessarily believe a judge can or should predict how he or she may rule in future cases. As a left-of-center citizen, I would prefer that judges be especially concerned with the needs of the marginalized. However, judges must be concerned with the rights of all people, based on their intelligent knowledge and interpretation of the law. Of course, not being a judge (but a retired teacher) my political opinions are just that: personal opinions. For me, it would be ideal if a judge opposed capital punishment, supported welcoming immigrants into our nation, and reasonable access to healthcare. Also, a workplace should be a safe, healthy environment and workers should receive a just wage and be treated fairly regardless of their characteristics. As someone who prizes my right to vote, I certainly favor laws which respect the right of all qualified adults to vote. Finally, I agree with Sister Campbell that people (We shouldn't be concerned only with the members of our faith although we should be proud to be Catholic) should "prioritize the real-world implications of judicial appointments." Although there are many matters that have real world complications , I myself believe that the violence of legal abortion has multiple real world implications: foremost for the innocent unborn human beings who are killed, but also for women who may be pressured into abortion by their boyfriends or parents, or who may experience physical or emotional side effects. Children who learn that their mother had an abortion may feel less trust that their mother loves them unconditionally . Parents may be upset by the loss of a grandchild, and in states that don't mandate parental consent prior to their minor daughters abortion, may feel disturbed by the death of a developing grandchild. Because of Roe v. Wade and Doe v. Bolton, since 1973 abortion has been legal for any reason up until the time the unborn infant (fetus, which means "young one" in latin ) is viable. Almost one million unborn human beings are killed in our nation each year. Although I certainly sympathize with women with unplanned pregnancies, only a small number are performed for serious medical reasons. According to a report some years ago by a physician journalist in the Washington Post, even the great majority of partial birth abortions, a particularly violent abortion technique, are performed for elective reasons. Every abortion, even those performed in the first trimester (as most are) kills an innocent human being. The science of biology confirms this fact. Yet there are tens of thousands of abortions performed in the second trimester, and several thousand in the third. Again, most of these abortions aren't performed for serious medical reasons. A number of legal scholars, even some who support legal abortion, have criticized the legal reasoning behind Roe v. Wade. Mary Ann Glendon of Harvard, is one prominent legal scholar who has in detail criticized Roe in her excellent book which I read, "Rights Talk: The Impoverishment of Political Discourse." Glendon also noted that Prof. Laurence Tribe, who supports legal abortion, criticized Roe for according no consideration of the rights of the unborn. I agree that abortion is a difficult matter , although I firmly support the restoration of legal protection to the innocent unborn. There are many hundreds of crisis pregnancy centers nationwide, which provide pregnant women and their babies with practical, compassionate alternatives to abortion. I occasionally make modest contributions to two such centers. One is a home in my PA county which provides shelter and other services including post -abortion counseling to pregnant women. I also contribute to Mom's House, a network of about six homes which provides free quality day care to low income pregnant women so that they can complete their educations. I do know several women who tragically chose the violence of legal abortion. Although I firmly disagreed with their decisions, I certainly don't have feelings of "hatred" towards them . Also, I think I understand the difficulty of women who experience unplanned pregnancies. I'm 1985, my 18 year old friend who was in college and his 17 year old girlfriend who was a high school senior found out that they were expecting. Despite some difficulty with the girlfriend's parents (which was eased by her brother who later became a priest) they had their baby boy one month after my friend turned 18 and graduates from high school. The two got married nine months after their baby was born. I enjoyed helping to care for their son (and their three other eventual children) as I was growing up. I also was happy to help my brother and sister care for their now adult four children. Finally, Dr. Bernard Nathanson, who personally performed over 5,000 abortions, was the co-founder of what's now known as NARAL Pro-choice America. In the late 1970's, he wrote an excellent book which I read, "Aborting America." Although an atheist of Jewish heritage at the time, and someone who still supported legal abortions with restrictions , he concluded based on biology, not religious belief, that abortion killed a human being. Nathanson provided a reasonable examination of the major arguments both for and against legal abortion. He admitted that he and the other "abortion rights" advocates deliberately grossly exaggerated the number of deaths from illegal abortions. Of course, any time a woman (or anyone) dies due to medical reasons it's a tragedy. However, there now are far more alternative-to -abortion agencies in our nation now than there were in 1973. Also, because of our nation's unfortunate drug abuse crisis, thousands of people for each year from drug overdoses. I believe that deliberately killing a human being to solve a problem is wrong. I also oppose capital punishment, and support stringent gun control laws which I believe is another respect for life issue.

Mary Gillespie
2 months ago

There is only one thing that the republicans and the male hierarchy care about and that is abortion. Control women. Produce offspring. There is nothing sacred or holy about their decisions. The whole "pro-life" solution is about punishing women and doctors regardless of their situation. There is no care about children after birth. It's all about pregnancy and then there's the double standard of allowing men to "sow their wild oats" regardless of the consequences ...because the consequences are just for women and children. This is wrong.

Dolores Pap
2 months ago

You are so right! And, they are hypocrites- we already know that they have no problem with abortion when their mistress/girlfriend find themselves compromised and need an abortion..

Sister Lea Hunter
2 months ago

"Brett Kavanaugh, introduced himself to the country with the preposterous falsehood that “no president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Even if Kavanaugh were not a post–Bill Clinton convert to the belief that the president is above the law, his decision to ritually debase himself before the president who selected him is an act that should end any fantasy that Kavanaugh possesses the necessary personal integrity to hold the position, let alone to defend the constitutional rights of Americans from a government determined to strip them away." https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/5669…

Stuart Meisenzahl
2 months ago

Sister Lea
Since you consider your quoted material to be "a preposterous falsehood" you must be able to readily demonstrate exactly what other Supreme Court Nominee was ever picked with more people from more backgrounds consulted.....please do so.
Of all the attempted accusations thrown at Judge Kavanaugh by his opponents, none of them has had the temerity to attack "his integrity" either as a judge or as a person.
Your referenced article in the Atlantic is all of a piece with all of the Atlantic's many assaults on Court decisions it disagrees with. In that article The Atlantic, as usual, must struggle mightily and ineffectively with its chosen political party's past adherence and sponsorship of racial discrimination in its effort to unpin that tale from the Donkey.

Michael Burke
1 month 3 weeks ago

network of course skipped abortion as main question

slavery was lawful, then changed
settled law is a red herring

A Fielder
1 month 3 weeks ago

According to Kavanaugh in 2015, “What happens at Georgetown prep stays at Georgetown prep. That’s been a good thing for all of us I think.”

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