Supreme Court nominee “sticks to the law,” former clerk says

Posted at 3:09 PM, Jul 10, 2018
and last updated 2018-07-10 17:09:20-04

NEW YORK — Judge Brett Kavanaugh’s views on hot-button issues like abortion are under a microscope after he was nominated by President Trump to serve on the Supreme Court.

During his 2006 confirmation hearing for the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh said he would follow the Supreme Court’s precedent in Roe v. Wade "faithfully and fully." But in a 2017 case involving a teen in immigration custody who was seeking an abortion, he wrote the dissenting opinion that would have given the government more say.

Jennifer Mascott, a former law clerk for Kavanaugh who’s now an assistant professor at the Antonin Scalia Law School of George Mason University, says it’s impossible to tell how he would rule in a future case concerning abortion rights. She described him as an independent and fair-minded judge.

"He’s got a long record where you can see that with every case he looks at the issues as they come. He keeps an open mind and sticks to the law," Mascott said. "He’s referred to the judge’s role as that of an umpire, so I expect that with this particular issue or any others, if they were to come before him and he were to be confirmed as a Supreme Court justice, that he would continue to keep an open mind and just call the issues as they are before him in that case."

Mascott believes the best way to look at Kavanaugh’s record is to focus on his general approach to deciding cases.

"He’s taken a case by case approach, looking at the text, the statutes and Constitution, looking at precedent and what is the precise issue that the court’s being asked to address and sticking with that issue rather than reaching out to inject policy preferences into the law," Mascott said.  

However, Democrats are not convinced by Kavanaugh’s former statements concerning Roe v. Wade. Sen. Chuck Schumer called Kavanaugh’s past statements about respecting precedent "a trick."

"Look what happened last week, Justice Roberts, Justice Gorsuch, they promised they would follow binding precedent and they undid 40 years of precedent on labor law in the Janus case. Justice Roberts undid in one of the worst decisions ever, Citizens United, reached far back and overturned 100 years of precedent," Schumer said.

© 2018 CBS Interactive Inc. All Rights Reserved.