Will she or won’t she? After last week’s grilling by the Senate Judiciary Committee of Supreme Court nominee Brett Kavanaugh, Sen. Catherine Cortez Masto, who says she remains undecided, has more questions for the judge, including on access to abortion.
“I do have concerns,” Cortez Masto said Wednesday after reflecting on last week’s hearings, adding that she remains committed to meeting with Kavanaugh though time is running out as a Senate vote on his confirmation is expected to come the last week of the month.
Specifically, the Nevada Democrat said she has issues with Kavanaugh’s rationale in a case of an underage, undocumented immigrant who sued for access to an abortion and his take on an understanding of a legal practice in which the courts typically defer to federal agencies on ambiguities in the laws that govern them.
She takes pride in working across the aisle. In July, she teamed up with conservative Republican Ted Cruz, of Texas, on a bill that would protect commercial 5G broadband networks from nationalization without authorization from Congress. In June she partnered with conservative Republican Marco Rubio, of Florida, on legislation to combat China’s political influence operations in the United States. Supporting Kavanaugh would give her a chance to burnish her bipartisan bona fides by voting on a nominee who will likely be confirmed irrespective of her vote.
But she dismissed that idea that she might support Kavanaugh solely to boost her reputation for working across the aisle. “I would never play politics with this,” Cortez Masto said. “Let me be very clear. This is too important a position on the United States Supreme Court. It is a lifetime position that is going to have an impact on what we do in the future, what our kids do, what our grandchildren do on so many issues. This is not politics for me. That’s why I am taking my time, looking at everything and want the opportunity to talk with him.”
Also, as a senator who feels strongly about protecting access to abortion, health care and protecting gains in civil rights, voting for Kavanaugh may be a bridge too far, said David Damore, chair of the political science department at UNLV.
“I would be very surprised if she votes to confirm Kavanaugh,” he said. “She is a lawyer and a former attorney general. Her approach is indicative of her careful and deliberative nature.”
“I cannot imagine a ‘no’ vote would have an impact on her re-election prospects given that she is not up for four more years and the voters who would be animated by a ‘no’ vote would be unlikely to vote for her to begin with,” he continued.
She said she is still going over the hearings and coming up with questions she plans to ask at her meeting, should it transpire. Cortez Masto is troubled by Kavanaugh’s decision in Garza v Hargan, which was the only significant case he oversaw that dealt with abortion in his 12-year career as a judge.
In the case, a 17-year old undocumented immigrant sued the federal government after being denied access to an abortion while in custody in Texas. The matter ended up in Kavanaugh’s court, U.S. Court of Appeals for the D.C. Circuit, after the government appealed a temporary restraining order to allow the girl to have the abortion. He issued an order that would have delayed the teenager’s access to an abortion by 11 days and would not guarantee that she could access abortion. Rather, it said that she would have to start her case all over again, and that the government could appeal. This could have taken weeks and would have pushed her even further into her pregnancy, and possibly over the 20-week deadline stemming from a Texas ban on abortion once a fetus reaches the 20-week mark.
“My reading of just the Garza case alone concerns me and it should concern anyone who has issues, just in general, about reproductive freedom,” Cortez Masto said.
Kavanaugh’s order was ultimately overturned by the full appeals court. He wrote a dissent that argued that the ruling amounted to “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Cortez Masto disagrees with his reasoning. “You don’t need to be an attorney to understand how he, I think, misread the issue in the case,” she said. “I think he was wrong and, clearly, he was overturned. So that’s one of the cases that I absolutely want to sit down and talk to him about.”
She also cited Kavanaugh’s interpretation on Chevron deference, a practice by which courts defer to federal agencies to determine the meaning of ambiguous terms in their governing statutes, as long as the agencies’ choices are reasonable. The doctrine, which typically comes into play in environmental cases, comes from Chevron v. Natural Resources Defense Council, which was decided by the Supreme Court in 1984.
“His determination of whether an ambiguity exists — what you do based on what doctrines you use — he’s espoused on that and I have questions about that,” Cortez Masto said. “It’s different than what traditionally and precedentially we have used in the past.”
She said she’s been in touch with the White House about setting up a meeting, but nothing has been finalized. Priority has been given to members of the Judiciary Committee and most Republicans and Democrats representing states that President Donald Trump won in 2016.
Neither Cortez Masto nor Sen. Dean Heller, a Republican, serves on the judiciary panel. Heller met with Kavanaugh in July and signaled his support shortly after. Cortez Masto declined to say how she would vote if she does not meet with the nominee. Meeting with Kavanaugh would mark a departure from the confirmation process of Justice Neil Gorsuch, who Cortez Masto said refused to meet with her before his confirmation vote last April. She voted against Gorsuch’s nomination.
She said that she has not felt pressure from Senate Democratic Leader Chuck Schumer, who is trying to keep his caucus together to show a united front and force moderate Republicans like Susan Collins of Maine and Lisa Murkowski of Alaska to cast the deciding votes on Kavanaugh.
But she did note that the calls, letters and emails coming into her office have been three-to-one in opposition to the nominee.
Cortez Masto has also not been pressured by Kavanaugh’s defenders nor his opponents. That may be because she is not up for re-election until 2022, which means that special interest groups have little, if any, leverage with her.
One progressive group, Alliance for Justice, said it has not looked into Cortez Masto’s position on Kavanaugh. But the group’s spokesperson, Laurie Kinney, noted that “No one is under the radar since this is a nationwide issue.”