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Senator Feinstein to Kavanaugh: “You ignored and mischaracterized Supreme Court precedent”

Demonstrators dressed as handmaidens await the arrival of US Supreme Court nominee judge Brett Kavanaugh at Senate Judiciary Committee confirmation hearing.
Reuters/Joshua Roberts
Demonstrators dressed as handmaidens await the arrival of US Supreme Court nominee judge Brett Kavanaugh at Senate Judiciary Committee confirmation hearing.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Published This article is more than 2 years old.

Capitol Hill is unusually lively today (Sept. 4) as Senate confirmation hearings for US Supreme Court nominee Brett Kavanaugh begin. Attendees were met by protestors dressed as red-clad handmaidens, symbolizing their opposition to the conservative judge, while angry onlookers interrupted the hearings. “We oughtta have this loudmouth removed,” senator Orrin Hatch complained as a woman shouted while he spoke.

In this heated atmosphere, it seems only Dianne Feinstein can get a word in edgewise. The California senator articulated her concerns about Kavanaugh on behalf of the opposition. Addressing her remarks to the nominee directly, she said, “The president who nominated you has said he will nominate someone who is anti-choice and pro-gun. We cannot find the documents that absolve that conclusion…This is why we feel so strongly.”

Feinstein said that as student at Stanford University in the 1950s, she saw firsthand how lack of access to legal abortions changed the course of female students’ lives. In the 1960s, Feinstein was a member of the California Women’s Parole Board and saw women who performed illegal abortions sent to state prison. She has seen “both sides” of the choice issue, she says, and fears that Kavanaugh—despite reassurances that he sees Roe v. Wadethe 1973 case that legalized abortion, as “settled law”—is a threat to the privacy rights not only of women, but of all Americans. ”The question is really, do you believe that it’s correct law?” 

Feinstein argued that Kavanaugh’s indifference to the law was evident in his 2017 dissent in Garza v. Hargan (pdf), a case about a Texas minor following state parental notification procedures. “You ignored and mischaracterized Supreme Court precedent,” Feinstein said. “Your argument rewrites Supreme Court precedent. This demonstrates you are willing to disregard precedent.” And if that’s the case, the senator says, there’s no reason to believe Kavanaugh won’t do just that on the high court.

For Feinstein, Roe represents more than women’s rights. It’s about everyone’s right to privacy and to freedom. “The impact of overturning Roe is much broader than a woman’s right to choose, it’s about protecting from governmental intrusion, who to marry, where to send children to school, medical care at end of life and whether or when to have a family,” she argued.

The senator also took issue with Kavanaugh’s position on gun control. “In reviewing opinions and documents, it’s’s pretty clear that your views go beyond pro gun rights,” she said. Kavanaugh has said that gun laws are unconstitutional unless they are “traditional and common in the US.” As such, Feinstein said, “banning automatic weapons is unconstitutional in your view.” 

She pointed out that even the late conservative Supreme Court justice Antonin Scalia acknowledged that regulating guns created for the military, like automatic assault rifles, was constitutional. Feinstein called Kavanaugh “far outside the mainstream of legal thought” and noted that conservative judges have called his reasoning “absurd.”

“The US makes up 4% of world population but we own 42% of world’s guns. Since 2012…there have been 273 school shootings.” The senator expressed concern that with Kavanaugh on the high court bench, children will be in danger. “You would likely be the deciding vote on fundamental issues,” she reminded him. 

Explaining the outrage expressed by protestors and Democratic senators opposing the hearings, Feinstein said, “behind the noise is a very sincere belief” that it’s important to keep the US a country that respects privacy rights and the safety of individuals. Her fear, she said, is that Kavanaugh will not help to ensure that the Supreme Court is “a court that really serves the people. That’s my worry.” 

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