If things had gone according to her plans, Hillary Clinton would have been the one making the Supreme Court picks, putting justices on the high court who would uphold a woman’s right to abortion, as she promised while campaigning in 2016.
Instead, her stinging defeat nearly two years ago has left her on the outside, where she’s launched a series of tweets attacking President Trump’s nominee Brett M. Kavanaugh, saying he’ll gut women’s rights, workers’ rights and health care.
After staying silent during last year’s confirmation of Justice Neil M. Gorsuch, Mrs. Clinton has fully committed this time, underscoring what’s at stake as senators debate who should replace retired Justice Anthony M. Kennedy.
“If Brett Kavanaugh becomes a Supreme Court justice, will he help gut or overturn Roe v. Wade, which legalized abortion in America? Yes, of course he will,” Mrs. Clinton tweeted Wednesday, as the judge prepared for his first questions at the Senate Judiciary Committee.
That followed tweets predicting the judge would also be hostile to labor unions and would jeopardize Obamacare.
But abortion was her chief focus.
She even suggested President Trump picked him because of comments he made about Roe, the 1973 Supreme Court decision that made abortion a constitutional right.
“A few weeks before Kavanaugh’s name appeared on President Trump’s short list for a new justice, Kavanaugh praised the dissent in the Roe v. Wade case and called former Supreme Court Chief Justice William Rehnquist his ‘hero,’ noting that ‘he clearly wanted to overrule Roe,’” she wrote.
Not so fast, said Judge Kavanaugh at Wednesday’s hearing.
“I understand the importance of the precedent set forth in Roe v. Wade,” he said. “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.”
But Judge Kavanaugh said that his ruling in this case wasn’t to stop her from obtaining an abortion but to give the government a short period of time to place her with a sponsor. He said that’s consistent with Supreme Court precedent, which has allowed parental notification and other restrictions to abortion, as long as they aren’t an undue burden.
“This is a 17-year-old, by herself, in a foreign country in a facility where she is detained and she has no one to talk to, and she’s pregnant. Now that is a difficult situation,” he said, adding that the case had sped through the courts. “I did my level best in an emergency posture.”
He was part of a 2-1 majority that initially blocked the girls’ quest for an abortion — but the case was quickly overturned by the full appeals court sitting en banc. The Supreme Court later stepped in and vacated the ruling, without deciding the case.
Judge Kavanaugh avoided direct answers Wednesday to questions over whether he believes illegal immigrants have an unfettered right to abortion in the U.S.
The illegal immigrant abortion case could soon come back to the Supreme Court in a broader form, after civil liberties groups won a class action certification for more teens — and the Trump administration appealed. That case is currently before the U.S. Circuit Court of Appeals for the District of Columbia, where Judge Kavanaugh sits — though he’s not part of the panel slated to hear the case later this month.
Mrs. Clinton urged her 23 million Twitter followers to “pick up the phone right now and call your senators” to oppose the judge’s confirmation.
Her 25 tweets total against Judge Kavanaugh this week are noteworthy because she didn’t post a single tweet last year against Justice Gorsuch.
Neither Mrs. Clinton’s spokesman nor the White House responded to messages seeking comment on her tweets.
Marge Baker, executive vice president for the progressive People for the American Way, said Mrs. Clinton’s involvement this year is likely because of the importance of the seat of Justice Kennedy, who served as a fulcrum on the court — including upholding Roe v. Wade.
“That has energized people who want to protect themselves and those they love from the impact of a more extreme Supreme Court. It’s no surprise that Secretary Clinton felt like it was important to raise her voice,” said Ms. Baker.
But conservatives say the former first lady, senator and secretary of state is fighting a losing battle alongside Senate Democrats.
“I’m not sure if she is playing catch-up now, but regardless Hillary Clinton and Chuck Schumer opposing soon-to-be Justice Kavanaugh only forces red state Democrats … to choose whether they stand with an experienced mainstream judge or Clinton and Schumer,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.
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