Early in day No. 2 of the hearings for Brett Kavanaugh, Donald Trump's nominee to the Supreme Court, it was clear what the Republican strategy would be: To portray Kavanaugh as not just an "impartial" judge, but to strongly and repeatedly hint that he might even have progressive leanings. Kavanaugh's record as a hard-right jurist was largely ignored and the nominee, along with the Senate Judiciary Committee's Republican members, instead singled out any evidence they could muster to trick viewers into imagining Kavanaugh is downright woke.
Kavanaugh repeatedly tried to be caught praising Brown v. Board of Education, the high court's landmark desegregation decision, and held forth on his disapproval of the "n-word." He waxed poetic about how free speech rights protect flag-burning and insisted that he believed Richard Nixon should have been held accountable during the Watergate scandal. Above all, Kavanaugh and his Republican supporters tried mightily to portray him as a friend to women and practically a feminist in his enthusiasm for women's equality.
“I believe in equality, equality of all Americans, men and women," Kavanaugh said, after Sen. Orrin Hatch, R-Utah, gushed about Kavanaugh hiring female law clerks, his tone suggesting this was a great sacrifice.
Indeed, much of Hatch's questioning was focused on giving Kavanaugh opportunities to congratulate himself on his back-breaking work in treating women as if they were equal. He talked up his mother, retired federal judge Martha Kavanaugh. He talked about how he respects female athletes. He mentioned he had college friends who were female.
Kavanaugh solemnly declared, "No woman should be subject to sexual harassment in the workplace, ever," and said it was a "gut punch" to discover that his former boss, circuit court judge Alex Kozinski, had been accused of sexual harassment.
(Unfortunately, Kavanaugh was not asked how his gut feels about the president who nominated him, Donald Trump, who has also been repeatedly accused of sexual harassment and has been recorded bragging about using his celebrity status to "grab ’em by the pussy" because "when you’re a star, they let you do it.")
“There’s an absolute difference between being nice to some women or having women in your family and what you do with the law," Dawn Laguens, the executive vice president of Planned Parenthood, told Salon.
It's the law that is the issue here, let us remember, not Kavanaugh's personal relationships. Sen. Dianne Feinstein of California, as the ranking member of the Judiciary Committee, was the first Democrat to question Kavanaugh, and quickly got into the issue of how the judge views Roe v. Wade. Kavanaugh, who had no problem expressing approval of other Supreme Court decisions like U.S. vs. Nixon or Youngstown Sheet vs. Sawyer, suddenly got all shy about expressing his own views on the famous 1973 decision that secured abortion rights nationwide.
Instead, he launched into a lengthy history lesson, explaining that abortion rights have been reaffirmed many times in the Supreme Court's history, but failing mysteriously to explain how he felt about it. The effect was to imply that he would support abortion rights, without saying so directly and proving himself a liar down the road.
Feinstein, however, wasn't having it.
“I’ve sat on nine of these hearings and when the subject comes up, the person says, ‘I will follow stare decisis’ [the legal principle of relying on precedent] and then they get confirmed and, of course, they don’t," she said.
Later in the day, Kavanaugh doubled down on implying that he would uphold abortion rights. Sen. Richard Blumenthal, D-Conn., called him out for using the phrase "abortion on demand" in his writings — a term used almost exclusively by anti-choicers who want to demonize abortion, either by provoking misogynist fears about women making demands or by making abortion sound like a consumer choice, akin to a cable TV plan. After initially seeming flustered, Kavanaugh smoothly shifted to arguing that his use of this phrase, which Blumenthal said was "code" for anti-choice views, was simply respecting precedential arguments that had used the same language.
“These are the exact same things that we heard from [John] Roberts and [Samuel] Alito during their hearings," Laguens said, noting that both men made similar comments about respecting precedent. “Yet both voted for a federal ban on abortion and they were both in the minority of the Whole Women’s Health decision. If it had been up to them, they would have allowed Texas to impose these medically unnecessary restrictions that would have closed most abortion providers.”
During her questioning, Feinstein firmly stated her support for legal abortion and concern that a ban on abortion would drive women onto the black market, threatening their safety. Kavanaugh responded by saying, "I understand how passionate and how deeply people feel about this issue," but continuing to elide how he feels.
New York magazine writer Rebecca Traister found Kavanaugh's response to Feinstein — and to women's concerns about their human rights generally — condescending. "This is a politer was of saying 'hysteria,'" Traister tweeted. "Situating question of one of feminized feeling, affect, passion, emotion."
That take seemed to be reinforced later in the hearing, when Sen. Dick Durbin, D-Ill., questioned Kavanaugh about his opinion in Garza vs. Hargan, in which Kavanaugh supported delaying an abortion for an immigrant teenager, even though she had met every legal standard set by the government to show she was entitled to one. Kavanaugh's opinion appeared to serve no other purpose than forcing a young person in a difficult life situation to wait until the window for legal abortion had closed.
To justify this decision, Kavanaugh emphasized that the girl was a minor and said that she needed "to consult with someone about the decision" — even though the girl had already met that requirement, getting a judicial bypass for parental notification in the state of Texas, meaning she had consulted with a judge and with lawyers about her options.
Kavanaugh's argument that this girl just needed more consultation after seven weeks of delay not only came across as deeply condescending, it lines up with his previous decisions holding that the decision to abort or have a child or use contraception is better made by a woman's boss or the government than by a woman herself.
This attitude towards women isn't just offensive, but contradicts extensive research showing that women who choose abortion know what they're doing and are highly capable of making decisions for themselves.
"Research shows the major benefits of allowing women to choose when and whether to have children, not just for the women themselves, but for their families," said Diana Greene Foster, the director of research at Advancing New Standards in Reproductive Health, who released a new report showing that women who get abortions they ask for are better able to provide for their children, emotionally and financially, than women who are denied them. This builds on previous studies showing that women who get abortions they want have better mental and physical health and better financial outcomes, and that they are better prepared to leave abusive relationships than women who fail to get abortions when they request them.
It's difficult to determine whether anyone is really fooled by these efforts to portray Kavanaugh as pro-woman and willing to follow precedent protecting women's rights. There's a reason, after all, that the entire anti-choice community backs Kavanaugh and the pro-choice community rejects him, It's not because there's any genuine confusion about how he will rule on reproductive rights cases.
But it's also true that Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska are perhaps the last two remaining dinosaurs in the Senate -- meaning ostensibly pro-choice Republicans -- and that their votes will be necessary to get Kavanaugh the majority he needs for confirmation. This entire charade is quite likely meant to provide them cover: They can claim to believe that Kavanaugh will uphold abortion rights and justify their vote for him.
If Kavanaugh is confirmed he will get his chance to start violating his supposed respect for precedent sooner rather than later. There are more than 20 cases in the federal courts right now that could, even within the next year, create opportunities for the Supreme Court to end abortion rights or drastically curtail women's access to contraception.