Sen. Ben Sasse said Thursday he was unsettled by Judge Brett M. Kavanaugh’s answers to questions about abortion precedent during his confirmation hearing this week.
The Nebraska Republican told radio show host Hugh Hewitt he was chucking his planned questions for Thursday’s second round and would instead pursue the judge’s reasoning on precedent, saying he’s “worried about some of the gray line.”
“On the one hand, when there’s a precedent, you don’t want every circuit court in America to be making up their own decisions about whether or not that precedent is a precedent that’s a big deal. On the other hand, Plessy. I mean, there are obviously cases where, situations where cases have been wrongly decided, and they need to be overturned,” Mr. Sasse said.
Plessy was the 19th Century case that established the “separate but equal” doctrine underpinning segregation. It was overturned in the landmark Brown v. Board of Education decision that Judge Kavanaugh called the Supreme Court’s greatest moment.
Questions about precedent were raised after Judge Kavanaugh declared Roe v. Wade, the 1973 case that established a national right to abortion, as an established precedent that had been reaffirmed by other cases.
He said that made it “precedent upon precedent.”
Democrats are convinced Judge Kavanaugh would overturn Roe should he win a seat on the Supreme Court.
But Mr. Sasse’s reaction to the judge’s testimony suggests conservatives aren’t certain how he’ll approach abortion cases.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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