Kavanaugh Questioned On 2017 Speech Referencing Roe Dissent

BRENDAN SMIALOWSKI/AFP

Sen. Kamala Harris (D-CA) grilled Brett Kavanaugh on his 2017 speech praising Chief Justice William Rehnquist that abortion rights activists saw as a signal that the Supreme Court nominee would overturn Roe v. Wade if confirmed to the court.

The speech, delivered at the right-leaning think tank the American Enterprise Institute, referenced Rehnquist’s dissent from Roe specifically and how the justice could not conclude that abortion was an “unenumerated right”— meaning one not explicitly spelled in the Constitution — that was “rooted in the traditions in conscience of our people.”

Kavanaugh was placed on the third iteration of President Trump’s list of potential Supreme Court nominees after giving the speech, having not appeared on the earlier versions of the roster.

Harris quoted the speech’s line about about Rehnquist’s success “stemming the general tide of free wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” She rattled off a number of unenumerated rights that would fit the description: the right to vote, the right to have control over how one’s children are raised, the right to medical care, the right love the partner of one’s choice and the right to abortion.

“My question to you is which of the rights that I just mentioned do you want to put an end or roll back?” she ask.

Repeatedly pressed by Harris, Kavanaugh pointed to the confirmation testimony of Supreme Court Justice Elana Kagan, and how she cited Rehnquist’s majority opinion in Washington vs. Glucksberg — a unanimous decision upholding a state’s ban on assisted suicide on the basis that it was not an unenumerated right.

“I agree with her description” of Glucksberg being the test for unenumerated rights “going forward,” he said.

Kavanaugh also tried to clarify that the speech was “a description of [Rehnquist’s] career in a variety of areas.”

“I described five different areas of his jurisprudence where he’d helped the Supreme Court achieve what I think has been a common sense middle ground that has stood the test of time in terms of precedent in a variety of areas,” Kavanaugh said.

Harris gave Kavanaugh another chance to address the individual unenumerated rights — he said he had already addressed them — and then she moved on.

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