Brett Kavanaugh: Trump's nominee for Supreme Court refuses to say if landmark Roe v Wade case was decided correctly

'I don’t live in a bubble. I live in the real world'

Donald Trump’s nominee for the Supreme Court has refused to say whether he believes the landmark 1973 ruling that recognised a woman’s right to a safe and legal abortion was decided correctly.

While saying his personal beliefs about abortion were not “relevant”, Brett Kavanaugh​, a staunch Catholic, told senators – as he had been advised to do – he would follow the example of previous nominees and not answer questions about how earlier cases were decided.

Facing his first day of questioning as part of his confirmation process, Mr Kavanaugh was pressed by Democrat Dianne Feinstein, who said hundreds of thousands of women had died due to illegal abortions in the years before the Roe vs Wade ruling.

“I understand the importance of the issue,” Mr Kavanaugh said. “I don’t live in a bubble. I live in the real world.”

He added that he believed the case was “settled law”. “One of the important things to keep in mind about Roe vs Wade is that it has been reaffirmed many times over the last 45 years, as you know – and most prominently, most importantly reaffirmed in Planned Parenthood vs Casey in 1992,” he said.

Democrats and abortion rights activists have seized on the issue as they seek to derail Mr Trump’s second appointment to the Supreme Court in less than two years.

After the White House last year secured the appointment of Neil Gorsuch, Democrats and progressives believe the country’s highest court would take a marked shift to the right if Mr Kavanaugh fills the vacancy created by the retirement of Justice Anthony Kennedy, known as a swing voter.

In addition to his comments on Roe vs Wade, Mr Kavanaugh said he has not taken a position on the constitutionality of investigating a sitting president. Yet his past writings cast doubt on the idea. Asked by senator Amy Klobuchar on Wednesday whether he believes such investigations are only acceptable in impeachment proceedings, Kavanaugh replied: “I did not take a position on the constitutionality. Period.”

In a footnote to a 2009 law review article, Kavanaugh wrote that “a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office”. A decade earlier, Kavanaugh wrote that the constitution seems to dictate that “congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.”

While critics have raised questions about whether Mr Kavanaugh believes a president can pardon him or herself or refuse to answer a subpoena, activists have focused most vocally on the issue of reproductive rights. Some have claimed that women’s rights have never been as threatened as they are now.

“A lot is at stake here. Our fundamental rights as women, our freedoms, our ability to control our own futures, lives [and] bodies,” Amanda Thayer, deputy national communications director for NARAL Pro-Choice America, one of several groups that have been holding protests opposing Mr Kavanaugh, told The Independent.

“It’s on the line, and we know that to be true. Brett Kavanaugh was nominated to the Supreme Court by Donald Trump, in part because he was a surefire bet to overturn Roe. And that is why so many people are out here today from across the spectrum.”

Democrats have sought, unsuccessfully, to postpone the hearing, claiming they only received all the relevant documents at the 11th hour. On Wednesday, senate minority leader Chuck Schumer was successful in shutting down the senate for one day, even as the hearing continued.

Earlier, Mr Kavanaugh, who has spent the last 12 years as an appeals court judge in Washington DC, also refused to answer two questions about the possible powers of a US president.

Ms Feinstein asked Mr Kavanaugh, who during the 1990s was a member of independent counsel Kenneth Starr’s team investigating President Bill Clinton, whether he believed sitting presidents could be sued or indicted – something he had previously suggested was not appropriate.

“They were ideas for congress to consider. They were not my constitutional views,” Mr Kavanagh said of his writing in a 2009 Minnesota Law Review article.

Mr Feinstein also pressed Mr Kavanaugh, who is expected to face questioning for several days before the committee is asked to vote about his nomination, about whether a sitting president could be required to respond to a subpoena. “I can’t give you an answer on that hypothetical question.”

Asked by committee chairman Chuck Grassley, a Republican, whether he would be independent from the president who nominated him, Mr Kavanaugh responded: “No one is above the law.”

Ms Feinstein then tweeted: “If Brett Kavanaugh truly believes the president isn’t above the law, he should have said the president must comply with a subpoena. There’s no reason Brett Kavanaugh couldn’t have given a straight answer.”

Mr Kavanaugh was asked by Democrat Patrick Leahy whether he believed Mr Trump had been legally correct when he tweeted earlier this summer that he had the “absolute right to pardon himself”.

“The question of self-pardon is something I have never analysed….[It’s] a hypothetical question that I can’t begin to answer as a sitting judge,” Mr Kavanaugh said.

Mr Leahy responded: “I hope for the sake of the country that remains a hypothetical question.”