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December 11, 2018

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Legal abortion, Yucca Mountain among concerns about Kavanaugh

Kavanaugh

Jacquelyn Martin / AP

President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, looks over his notes during a third round of questioning on the third day of his Senate Judiciary Committee confirmation hearing, Thursday, Sept. 6, 2018, on Capitol Hill in Washington, to replace retired Justice Anthony Kennedy.

For Senate Democrats, including Nevada’s Catherine Cortez Masto, the calls last week to delay the Senate judiciary committee hearing to question the potential newest member of the Supreme Court were the result of many concerns.

Brett Kavanaugh, President’s Donald Trump’s pick for the Supreme Court, helped issue an order to delay an underage Central American immigrant in federal detention from receiving an abortion. He also wrote a majority opinion that said the Nuclear Regulatory Commission had to consider a license application for the proposed Yucca Mountain nuclear waste repository. And he has expressed support for broad powers in the executive branch, including writing in 2009 that presidents shouldn’t be investigated or prosecuted while in office.

“His views on abortion rights are terrifying,” said Alicia Briancon of the Progressive Leadership Alliance of Nevada. “Women will die if (Roe is) reversed, and women do not need more policies telling them what they can and can’t do with their bodies.”

A group of 25 Senate Democrats demanded access to withheld portions of the judge's record, some calling for hearings to be delayed until all documents were released.

Cortez Masto said this is particularly important when it comes to Kavanaugh’s position on Roe v. Wade. Some Democrats made similar calls to delay Kavanaugh’s hearing after a plea deal and conviction of individuals close to Trump cast doubt on the president’s ability to nominate judges to the nation’s highest court.

 Republicans have said these are attempts by Democrats to disrupt the process. The GOP changed the confirmation rules to a simple majority under Trump, after Senate leadership blocked a court nomination by former President Barack Obama. Four of the nine sitting justices were nominated by Democratic presidents. Nevada’s Republican Sen. Dean Heller has expressed support for Kavanaugh’s nomination.

The committee is expected to vote this week, possibly setting up a full Senate vote later this month or in early October.

“Senate Republican leaders are attempting to rush a lifetime appointment to the Supreme Court of the United States without being transparent with the American people,” Cortez Masto said.

Kavanaugh has acknowledged the precedent set by Roe v. Wade, but has also spoken in favor of a dissenting justice in the case. That speech and several other instances, such as the immigrant abortion case, were cited in a Center for Reproductive Rights report on Kavanaugh that the group used to come out against his nomination.

The Supreme Court has continued to weigh in on reproductive rights since the Roe decision in the 1970s, as some states’ attempts to limit abortion access spur lawsuits. The justices came down on the side of reproductive rights activists in a Texas case involving an abortion law that led to the closure of certain health care facilities.

Daniel Stewart, former chief counsel to Gov. Brian Sandoval, said abortion rights groups have cause to be concerned. There were similar predictions that Roe could be overturned in the 1990s with George H.W. Bush’s nomination of Justice David Souter, who and ended up being a “champion of reproductive rights,” Stewart said.  

While it’s unlikely Roe is overturned, he said, there may be some cut backs with a narrow 5-4 court.

“Anytime there’s a change in a court, especially when you’re dealing with a swing seat, these are concerns to have,” Stewart said.

Looking at the Yucca Mountain decision, there isn’t actually anything there that shows Kavanaugh explicitly supports the project, said Stewart.

The decision actually acts as a check on what some perceive as an overly robust executive branch, Stewart said. Blocking the Yucca Mountain project violated federal law, which said the site had to be considered, Stewart said. The NRC can deny the Yucca application, Stewart said, but the administration cannot simply block the agency from considering a site designated under a 1987 amendment to the 1982 Nuclear Waste Policy Act.

“In that respect, he’s actually been taking power away from the executive,” Stewart said.

 While Kavanaugh has expressed support for the president having broad power inside his cabinet, Stewart said, he has also shown that he supports pulling back on some of the deference that courts have given executive agencies to run themselves.

Kavanaugh helped develop a doctrine that the Supreme Court adopted, Stewart said, establishing that courts should be able to weigh in on cases where agencies are developing significant policies.

“These are the types of decisions we want, where they say an executive can’t ignore the law, they have to follow the law and it’s up to Congress to change that law, which they should,” Stewart said.

The country can generally expect to see the power of the executive branch fall back in the next 20 years or so, and the Supreme Court will likely have a role in that, Stewart said.

“It’s only been in the probably last decade that you’ve seen as administrations have changed, that back and forth, that people have come to question, well maybe there is a place for a court to weigh in to make sure that the executive branch isn’t making law, they’re enforcing law,” Stewart said.