he couldn’t say at his public hearings. He had told Senator Collins that he agreed with Chief Justice Roberts’s comments in his own confirmation hearings, but the Delphic formulation “settled law” had tipped neither Roberts’s hand nor Kavanaugh’s. After all, no jurist believes that stare decisis requires every prior decision to be left in place. In striking down racial segregation2 and anti-sodomy laws,3 the Court overturned precedent, just as it did when it overturned campaign finance regulations4 and blocked unions from forcing non-members to pay dues.5 Acknowledging that a case is “settled law” is merely descriptive and doesn’t indicate whether a judge would overturn it if given the opportunity.
On the second day of John Roberts’s hearings in 2005, the chairman of the Senate Judiciary Committee, Arlen Specter, had grilled him on whether he would overturn Roe v Wade. Roberts responded that he would follow the precedent of previous nominees and not discuss particular cases, adding that previous decisions should be overturned only on the basis of the law, not mere disagreement with the outcome. Still, he showed high deference to prior legal decisions:
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
Roberts also said that a judge must not say whether he will or will not overrule a given decision.
Kavanaugh’s meeting with Senator Tim Scott of South Carolina, the only black Republican in the Senate, focused on race. Immediately before they met, Scott had voiced a dramatic last-minute objection to the appointment of Ryan Bounds to a federal appeals court because of racially insensitive writings from college. Knowing the senator’s concern, Kavanaugh told Scott about his law review note—a capstone article that each student member of a law review gets to publish on a topic of his choice—on eliminating racial discrimination in jury selections. He explained that his concern about racial inequality stemmed from his mother’s work in inner-city schools. Scott was favorably impressed with how much time he had devoted to the issue.
While Kavanaugh met with senators, the Center for Popular Democracy, having brought some six hundred protesters to Washington, staged a demonstration in and around the Capitol. On August 1, following the group’s rally, seventy-four protesters were arrested when they tried to block the Senate hallways to prevent the meetings with Kavanaugh from taking place.6
After weeks of refusing to speak with Kavanaugh, the Democratic leadership relented, agreeing on August 3 to meet with him later in the month, in the last two and a half weeks before the hearings. The minority leader, Chuck Schumer, and the ranking Democrat on the Judiciary Committee, Dianne Feinstein, had imposed the boycott to force the release of not only all the papers Kavanaugh had seen while serving in the Bush administration but every one of the millions of documents produced by the Bush White House while he served as staff secretary. By contrast, Mitch McConnell had met with Elena Kagan on her first day on Capitol Hill, two days after she was nominated, before her paperwork had even been processed.
Senator Joe Manchin, who was running for reelection in Trump-friendly West Virginia, had already broken the Democratic boycott, meeting with Kavanaugh on July 30. After a chat about sports and their shared background in Catholic schools, Manchin wanted to talk about Obamacare. When Kavanaugh, predictably, declined to go into specifics, they instead discussed his approach to “severability,” a sometimes-arcane concept that figured in several legal challenges to Obamacare. Kavanaugh was also able to go over his record with Manchin, rebutting the misguided charge that he always favored corporate interests. His rulings in favor of both workers and corporations attested to his fidelity to the principle that the law, not a judge’s policy preferences, should determine his decisions. Immediately after their meeting, Manchin went to see Schumer in person, which the White House viewed as an excellent sign that he planned to break with his partisans