There’s a lot of talk that the new Supreme Court, one with two Trump justices on it, might overturn Roe v. Wade. So the court can’t just wake up one morning and say, we’re overruling Roe v. Wade. I think supporters of abortion rights are right to be nervous, but they’re maybe not exactly right about how to be nervous, what to be nervous about. It’s a shorthand, sure, to say Roe v. Wade can be overruled, but that’s not the only, or even the most likely, outcome. Let me take you through the possible scenarios. Let’s call the first category the nuclear options. These are the most extreme and, therefore, least likely scenarios. The first one would flip Roe on its head. Roe says there’s a constitutional right to abortion. The court could say the Constitution prohibits abortion in the interest of protecting fetal life. That would suggest that fetal life is like any other life, so that taking it away would be murder. So if the court were to go in that very unlikely direction, abortion would be outlawed across the nation, and women could not get abortions in the United States legally. A second nuclear option would be for the court to do away with the right to privacy established in a case called Griswold in 1965. “The individual is entitled to some private sector.” That right to privacy is the foundation for Roe v. Wade. If the right to privacy goes, it would do away with the basis for Roe v. Wade and, therefore, Roe v. Wade itself and flip the issue back to the states and allow states to regulate abortion as they wish. The right to privacy has been, and could be, the foundation of many rights, so I don’t think it’s likely the court will go after the right to privacy. A second possibility, and the one everyone’s talking about, is the court could overrule Roe v. Wade. Protesters: “Ho, ho, Roe v. Wade has got to go. Hey, hey, ho, ho.” So in a post-Roe world, you still have a right to privacy. But that right to privacy does not include a constitutional right to abortion. States would be free to do what they wanted. And some advocacy groups say perhaps 22 states could make abortion illegal entirely. That’s probably not going to happen anytime soon. Protesters: “Hey, hey, Roe v. Wade is here to stay.” Chief Justice John Roberts is an incrementalist. He takes things step by step, and I don’t think his first impulse is going to be, let’s overrule Roe v. Wade when there are other ways to get from here to most of the way there. The last scenario, and the most likely one, is for the court to chip away at Roe v. Wade. The court has already upheld some restrictions on abortion. “The 5 to 4 majority upheld a ban on performing abortions in public facilities.” “The U.S. Supreme Court today upheld the nationwide ban on partial-birth abortion.” “Medication abortion is now effectively blocked in Arkansas.” Much more severe restrictions on abortion rights are a perfectly imaginable scenario when we have a new Supreme Court. Here’s how that could happen. States cannot impose an undue burden on women’s right to abortion. That’s a fairly malleable standard, and it wouldn’t be hard for the Supreme Court to keep it in place, but interpret it slightly differently and say states can impose such restrictions. A couple of years ago, the court heard a case from Texas. And had the court sustained the Texas law, the number of clinics in Texas would have dropped from about 40 to about 10. And that could rapidly diminish the ability of women to get abortions because the nearest abortion clinic, at a minimum, could be hundreds of miles away. It’s a little hard to answer exactly what life will look like in a given state because we’ll have a patchwork of laws. But what’s for sure is that women in red states, and particularly poor women in red states, will have a much harder time getting abortions as each successive abortion restriction is sustained by a court that now has a solidly conservative majority.<doc-sep>UNITED STATES - MAY 09: Brett Kavanaugh is sowrn-in at a Senate Judiciary Committee hearing on his nomination to be U. S. Circuit Judge for the Ninth Circuit. (Photo By Chris Maddaloni/Roll Call/Getty Images) WASHINGTON, DC - JULY 09: U.S. Circuit Judge Brett M. Kavanaugh looks on as U.S. President Donald Trump introduces him as his nominee to the United States Supreme Court during an event in the East Room of the White House July 9, 2018 in Washington, DC. Pending confirmation by the U.S. Senate, Judge Kavanaugh would succeed Associate Justice Anthony Kennedy, 81, who is retiring after 30 years of service on the high court. (Photo by Chip Somodevilla/Getty Images) Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh in the Justices' Conference Room, Supreme Court Building. Mrs. Ashley Kavanaugh holds the Bible. Credit: Fred Schilling, Collection of the Supreme Court of the United States. UNITED STATES - SEPTEMBER 6: Sen. Cory Booker, D-N.J., threatens to release committee confidential documents during the start of day three of Brett Kavanaugh's confirmation hearing to be Associate Justice of the Supreme Court in the Senate Judiciary Committee on Thursday morning, Sept. 6, 2018. (Photo By Bill Clark/CQ Roll Call) (CNN) — Brett Kavanaugh emerged from two days of tough questioning in the Senate Judiciary Committee without making any obvious missteps that could imperil his confirmation as the justice who will pull the Supreme Court to the right and hand Donald Trump a generational presidential legacy. He avoided ceding ground on the most contentious issues, either by saying he wanted to keep “three zip codes” away from politics or by arguing that he could not comment on “hypothetical” cases that could come before him on the nation’s top bench. Kavanaugh refused to say whether a sitting president must respond to a subpoena – not an academic issue in the age of Trump. He declined to agree to Democratic calls for him to recuse himself from any cases related to the Russia investigation. And he would not say where he would come down on abortion, amid expectations among conservatives he would like to overturn Roe v. Wade. But Democrats did not walk away from a deeply divisive hearing with nothing. Top lawmakers showed vigor in cross examining Kavanaugh and by portraying him as Trump’s man on the court and may have at least partly lived up to expectations of the party’s fired up base for a show of backbone ahead of the mid-term elections. After emerging largely unscathed after the final round of questions from senators that stretched late into Thursday evening, Kavanaugh could take comfort in passing his biggest test. If Republicans stick together he is almost certain to be confirmed while minority Democrats face their own challenge in keeping the votes of red state senators with tough re-election races in their column. Booker’s document fight Thursday’s hearing featured another bitter showdown between Democrats who are furious at the failure of the White House to hand over tens of thousands of key documents on time or at all, and at restrictions on the public release of material that was made available. New Jersey Democrat Cory Booker said he was ready to risk expulsion from the Senate for making public documents pertinent Kavanaugh’s time as a top White House aide to President George W. Bush, but the GOP mocked him for grandstanding ahead of a possible 2020 run – saying it had already cleared the emails for release. In a striking political gambit, Booker, backed up by Democratic Sen. Mazie Hirono of Hawaii, released emails – which had been designated as “committee confidential” – that reference Kavanaugh’s position on racial profiling and thoughts on Roe v. Wade dating from his time as a White House official under Bush. Booker, who as a potential 2020 presidential candidate had an incentive to make a splash in the hearing, said he took the action as an act of “civil disobedience.” “I understand the penalty comes with potential ousting from the Senate. … I openly invite and accept the consequences of my team releasing that email right now,” Booker said. “This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment,” he added. Republican Sen John Cornyn warned Booker that releasing documents marked “committee confidential” would break Senate rules. “Running for president is not an excuse for violating the rules of the Senate,” the Texas Republican said. Later Thursday, Bill Burck, a lawyer who oversaw the process of providing Bush administration documents, undercut Booker’s grand gesture, saying that the material in question had been cleared on Wednesday night at the request of the senator’s staff. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public,” Burck said in a statement. The office of Judiciary Chairman Chuck Grassley, an Iowa Republican, also said that senators, including Booker, were notified “before they spoke today” that the restrictions on the documents had been waived. Booker, however, insisted he was in the right, saying he read from the documents aloud in the hearing on Wednesday night long before they were cleared at around 4 a.m. Democrats have repeatedly complained that the White House is withholding tens of thousands of documents relevant to the nomination and wants many more that have been provided released to the public. The New Jersey senator also said he doubted Cornyn would follow through on his threats to enforce Senate discipline against him. “I think he’s like a lot of bullies are: a lot of talk, no action,” Booker said. North Carolina Republican Sen. Thom Tillis took exception to his Democratic colleague’s tactics. “Certainly in the six hours between the time that email hit your email box and the theatrics that happened in this chamber today you could have actually found out that you didn’t have to be Spartacus, you didn’t have to go interact with civil disobedience, you got what you wanted,” Tillis said. The schoolyard taunts underlined how the hearing, ahead of what appears to be Kavanaugh’s likely confirmation, has become another battlefield in the vicious partisanship and complete lack of trust between the parties that is wracking Washington at a critical moment of the Trump era Booker’s intervention followed a set of glowing reviews from liberals for another potential 2020 Democratic presidential candidate on the Judiciary Committee, Sen. Kamala Harris of California, who late Wednesday night appeared to discomfort Kavanaugh with a series of questions designed to find out with whom he had discussed special counsel Robert Mueller’s Russia investigation. Harris returned to the question on Thursday evening, saying that she had been working on “reliable information” that Kavanaugh had a conversation about the probe with someone from Kasowitz Benson Torres, the law firm founded by Trump’s personal attorney Marc Kasowitz. Kavanaugh had sidestepped the question on Wednesday, so Harris asked him again and he replied “the answer’s no.” Earlier, the firm said in a statement to CNN there had been no such discussions. Harris did not disclose the “reliable information” on which she based her questions. 02:55 - Source: CNN Senator challenges Kavanaugh on Mueller probe 2003 email shows Kavanaugh discussing Roe In another flashpoint development, a previously unreleased 2003 email from Kavanaugh, while he was an official in the Bush White House, shows him raising the point of whether Roe v. Wade, the 1973 Supreme Court ruling that upheld the right to an abortion, was settled law of the land. In the internal White House email, obtained by CNN, Kavanaugh wrote: “I am not sure that all legal scholars refer to Roe v. Wade as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” “The point there is in the inferior court point,” Kavanaugh wrote, responding to a draft op-ed that had been circulated for edits between lawmakers and White House staff.<doc-sep>Defying rules of the Senate and in protest of the confirmation process of Judge Brett Kavanaugh, New Jersey Democrat, Sen. Cory Booker on Thursday released documents pertaining to Kavanaugh's record deemed "confidential" by the Senate Judiciary Committee. Booker made the threat to release the documents on day three of Kavanaugh's confirmation hearing, risking his ouster from the Senate. The documents in question pertain to Kavanaugh emails on racial profiling that had been marked confidential by the Judiciary Committee. Booker referred to the emails when he questioned Kavanaugh Wednesday. He maintains that the emails have "nothing to do with national security" and should not have been marked confidential in the first place. Booker was admonished for his threats by Republican committee members including Sen. John Cornyn of Texas for making such a suggestion. "Running for president is not an excuse for violating the rules of the Senate," said Cornyn, calling Booker's threat "irresponsible and outrageous" and "unbecoming a senator." He also read the relevant rule to the committee: Any Senator of employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business of the committees, subcommittees and offices of the Senate, shall be liable if a Senator - to suffer expulsion from the body. Democrats including Sens. Dick Durbin and Mazie Hirono joined in on Booker's plea, declaring, "Count me in," and decrying the hearing process as having "broken down." They all said they'd accept punishment for the release of separate classified documents. Grassley retorted, "You want to give up your emails right now? Make them public? I don't think you do!" Booker maintained that while he did willingly violate the chair's rule on the committee confidential process, he did so because he "sincerely believes the public deserves to know this nominee's record." "Bring the charges, go through the Senate process to take on somebody you said is unbecoming to be a Senator. Let's go through that process because I think the public should understand that at a moment someone is up for a lifetime appointment...I hope they'll follow through." The Democrat, citing his colleagues' support, touted his "I am Spartacus" moment in the Senate. He added, "I'm ready to accept the full responsibility for what I have done, the consequences for what I've done, and I stand by the public's right to have access to this document." Read the documents here: While it raised eyebrows, Booker's suggestion that he would be willing to be expelled from the Senate for his release of committee confidential documents isn't rare. According to the U.S Senate, since 1789 the body has expelled 15 members. Of that 15, 14 were charged with supporting the Confederacy during the Civil War -- a vastly different charge than what Booker faces. In other cases, the Senate merely considered expulsion proceedings but either found the given member not guilty or failed to act before that member left office. In those cases, the Senate notes, corruption was the main cause for the expulsion complaint. The Senate could, however, move to impose a less severe form of punishment known as "censure." A censure doesn't remove a senator from office but the official statement of admonishment or disapproval can have equal lasting damage to an outright expulsion. The Senate has censured only nine members.<doc-sep>
WASHINGTON — Senate Democrats on Thursday released several documents related to Supreme Court nominee Brett Kavanaugh that had previously been classified "committee confidential," as his Senate confirmation hearing entered its third day. The session — the second and final day of questioning for the nominee — lasted nearly 13 hours. On Friday morning, the final scheduled day of Kavanaugh's confirmation hearings, the Senate Judiciary Committee is expected to hear from 28 expert witnesses including John Dean, President Nixon's White House counsel. U.S. Capitol Police said Thursday evening that 69 more people had been charged that day for unlawfully demonstrating. As the hearing began, Sen. Cory Booker, D-N.J., said that he planned to release a document that he had referred to on Wednesday about Kavanaugh and racial profiling that dated to the nominee's days in the George W. Bush White House, despite the fact that its release would violate Senate rules. “I openly invite and accept the consequences of my team releasing that email right now,” said Booker, noting that penalties could technically include being expelled from the Senate. Lawyers for Bush and the Department of Justice reviewed requests from Booker and several other Democrats to publicly release certain "committee confidential" documents related to Kavanaugh, according to Bush lawyer Bill Burck. That request was granted Wednesday night, said Burck, in a statement accusing Booker of "histrionics." Booker spokeswoman Kristin Lynch said the senator had "said this morning that he was releasing confidential committee documents, and that's exactly what he's done," saying that he and Democrats had been able to "shame the committee" into agreeing to make the documents publicly available. She did not specify when that approval had been granted. At the Thursday hearing, Sen. John Cornyn, R-Texas, accused Booker of political grandstanding. “Running for president is no excuse for violating the rules of the Senate or the confidentiality of the documents that we’re privy to,” said Cornyn, adding that he viewed Booker’s action as no different from a decision to release a classified document — calling it “irresponsible” and “outrageous.” Cornyn's reading of Senate rules warning of the potential consequences of Booker's actions sparked a defiant response from Booker. "Bring it. Bring it," he said. Fellow committee Democrats came to Booker's defense. "I concur with what you're doing," said Sen. Dick Durbin of Illinois. "Let's jump into this pit together." Chairman Chuck Grassley, R-Iowa, on Thursday defended the decision to keep "committee confidential" documents private, saying that redactions were often needed to protect personal information. A Grassley aide told NBC News shortly after the exchange that the email in question was now eligible for release, and no longer considered committee confidential. In another Kavanaugh document provided to NBC News from two Democratic sources — an email from 2003 that was originally deemed “committee confidential” but made public at 4 a.m. ET Thursday — Kavanaugh seemed to question whether Roe v. Wade, the 1973 landmark decision legalizing abortion, is settled law, and whether it could be overruled. The existence of the email was first reported by The New York Times. The report came a day after Kavanaugh testified before the Senate Judiciary Committee that the decision is "settled law" and "has been reaffirmed many times over the past 45 years." The document had been deemed "committee confidential," meaning senators were not allowed to discuss it in open session before the public. Sen. Dianne Feinstein, D-Calif., on Thursday questioned Kavanaugh about the newly released email and whether he believes Roe v. Wade is settled law. "I was referring to the views of legal scholars, and I think my comment in the email was that it might be overstating the position of legal scholars and so it wasn't a technically accurate description in the letter of what legal scholars thought at the time," Kavanaugh said. "Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times." Pressed further by Feinstein to answer whether the ruling is "correct law" with a simple "yes" or "no," Kavanaugh declined to answer and said that he's studied previous Supreme Court nominee confirmation hearings and says he can't "give a thumbs-up or thumbs-down." Sen. Orrin Hatch, R-Utah, then gave Kavanaugh a chance to revisit an issue raised by Sen. Kamala Harris, D-Calif., on Wednesday by asking the nominee if he had any conversations about special counsel Robert Mueller or the Russia probe with anyone who works at the law firm run by President Donald Trump's personal lawyer, Marc Kasowitz.