POLITICS
09/06/2018 10:23 am ET Updated Sep 06, 2018

Brett Kavanaugh Questioned Whether Roe v. Wade Is 'Settled Law' In 2003 White House Email

"I am not sure that all legal scholars refer to Roe as the settled law of the land," read the leaked email, published by The New York Times on the third day of his Supreme Court hearing.

Judge Brett Kavanaugh wrote an email in March 2003 questioning whether Roe v. Wade, the landmark abortion rights decision, was “settled law of the land.” The email had been deemed confidential by Senate Judiciary Committee Republicans but was provided to The New York Times by an anonymous source.

Kavanaugh, whom President Donald Trump nominated for the Supreme Court seat vacated by Justice Anthony Kennedy, has attempted to portray himself as believing that the abortion rights secured under Roe v. Wade and affirmed by Casey v. Planned Parenthood are precedent. Roe, according to Kavanaugh in his confirmation hearing, is “an important precedent of the Supreme Court that has been reaffirmed many times.”

The email from his time in the George W. Bush White House was in response to a draft opinion article in support of one of Bush’s appeals court nominees. The piece was written with the intent to place it under the names of anti-abortion women. The draft stated, “It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Kavanaugh’s email, however, stated: “I am not sure that all legal scholars refer to Roe 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.”

Judiciary Committee Chairman Chuck Grassley (R-Iowa) has refused to request all documents from Kavanaugh’s tenure in the Office of White House Counsel and has not requested any documents from Kavanaugh’s time as staff secretary to the Bush White House. He has also failed to release 189,000 documents that he has labeled “committee confidential.” The leaked email published Thursday is one Grassley deemed confidential.

Sen. Richard Blumenthal (D-Conn.) appeared to refer to this document during his questioning on Wednesday, asking Kavanaugh about his position in the White House. Kavanaugh distanced himself from what he wrote, arguing that he took a different approach as a judge and treated it as precedent.

BLUMENTHAL: Is it a fact, judge, also that while you were in the Bush White House, you took the position that not all legal scholars actually believe that Roe v. Wade is the settled law of the land and that the Supreme Court could always overturn it as precedent ― and in fact there were a number of justices who would do so?

KAVANAUGH: I think that’s what legal scholars have ― some ― some legal scholars have undoubtedly said things like that over time, but that ― that’s different from what I as a judge ― my position as a judge is that there’s 45 years of precedent and there’s Planned Parenthood v. Casey, which reaffirmed Roe.

So that’s precedent on precedent, as I’ve explained, and that’s important. And that’s an important precedent to the Supreme Court.

This is only one undisclosed Kavanaugh document that Democrats alluded to during questioning on Wednesday.

Sen. Patrick Leahy (D-Vt.) stated that there were six emails deemed confidential that show Kavanaugh lied under oath in his previous two judicial confirmation hearings. The emails, according to Leahy, would show that Kavanaugh, as deputy White House counsel, knew that he received documents stolen from Senate Democrats about their strategy for judicial nominations.

Leahy disclosed the six emails later on Thursday. The emails showed Manny Miranda, the Republican staffer who stole documents from Senate Democrats, passing those documents on to Kavanaugh and other White House officials, but without directly explaining who he obtained them from. Miranda attributed the information he was passing on to “Democrat sources.” Leahy said in a Thursday tweet, “Kavanaugh was told that I received a sensitive letter ‘in the strictest confidence’ about a controversial nominee. He was asked to keep the information confidential and to take no action without further instruction. HE DIDN’T THINK THIS WAS ‘untoward’?”

Sen. Cory Booker (D-N.J.) on Thursday released formerly confidential emails related to Kavanaugh’s record on race and criminal justice.

The revelation that Kavanaugh has privately stated views that Roe v. Wade is not settled law, contradicting his statements to the committee this week, has prompted reproductive rights groups to denounce the nominee.

“Brett Kavanaugh’s emails are rock solid evidence that he has been hiding his true beliefs and if he is given a lifetime seat on the Supreme Court, he will gut Roe v. Wade, criminalize abortion, and punish women,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement.

She added, “Now we know exactly why Republicans are hiding his records. Any senator who claims to care about women and our reproductive freedom should need no further evidence to publicly oppose this nomination.”

This article has been updated to include additional information related to previously confidential emails referred to by Sens. Leahy and Booker.

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