Brett Kavanaugh’s views on abortion received fresh scrutiny after leaked documents revealed President Donald Trump’s Supreme Court nominee once suggested the high court could reverse the landmark case ensuring the right to an abortion.
The email, which was previously off limits for the hearings, appeared to undercut Kavanaugh’s attempts to sidestep one of the most sensitive issues in his confirmation battle: whether he would provide the fifth vote to limit or overturn Roe v. Wade. But more than halfway through his second and final day of questioning from the Senate Judiciary Committee, Kavanaugh kept brushing aside new questions about his approach to abortion.
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The new documents from 2003, when Kavanaugh was a White House lawyer in George W. Bush’s administration, showed him pushing back on a line in a draft op-ed that described Roe as “widely accepted by legal scholars” and “settled law of the land.”
“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,” Kavanaugh wrote in the email, which was obtained by POLITICO and first reported by the New York Times. The email asserted that “three current Justices on the Court would do so.”
The revelations prompted sharp concerns from Senate Democrats, who say Kavanaugh has been downplaying his opposition to abortion.
Kavanaugh in his 2003 email did not state his personal views on Roe. And throughout his confirmation hearings, he’s repeatedly refused to take a position on the case, saying only that he considers it a precedent that’s been repeatedly reaffirmed by subsequent decisions like Planned Parenthood v. Casey in 1992.
“That precedent on precedent is quite important,” Kavanaugh said.
But his 2003 email pointed out what he hasn’t acknowledged in testimony on Roe — that the Supreme Court could reverse precedent.
“To be very clear, Judge Kavanaugh personally highlighted that precedent can be overturned,” Sen. Patty Murray (D-Wash.), the ranking member of the health committee, said in a press conference Thursday. “And he was literally counting the number of judges who stand ready to overturn Roe v. Wade.”
Kavanaugh on Thursday contended that he was simply concerned with accurately describing skepticism among some legal scholars whether Roe was settled law.
But Democrats opposed to his nomination seized on the contrast between the email and his deflections this week, pressing him to disclose whether his abortion views have changed since his time in the George W. Bush administration.
“When [Kavanaugh] says legal scholars are not sure it’s settled law, he’s talking about himself,” said Sen. Richard Blumenthal (D-Conn.), reading from the email during a press conference Thursday. “Not that he’s a legal scholar, but that there is a reason that he would think that Roe v. Wade can be overturned.”
Kavanaugh acknowledged that he may also have worked on women’s health issues during his time in Bush’s White House, including legislation banning so-called partial-birth abortions.
“President Bush was a pro-life president, and so his policy was pro-life,” he said. “Some of those things might have crossed my desk. I can’t remember specifics.”
If confirmed, Kavanaugh could hear a case on abortion in his first term. An array of cases winding their way through the lower courses grapple with various limits on abortion states have sought to enact.
The release of the emails, which were previously available to the committee but were not supposed to be disclosed during the hearing, incensed Republicans, who accused Democrats of defying the rules for political purposes. Sen. Orrin Hatch (R-Utah) defended the email on Roe, contending Kavanaugh’s comments were motivated by his desire for accuracy.
The new email didn’t spark any immediate concern from two Republican senators who support abortion rights, Susan Collins and Lisa Murkowski. The potential swing votes, who both supported Justice Neil Gorsuch’s confirmation last year, have not yet publicly said how they will vote on Kavanaugh. Their offices did not immediately respond to requests for comment on the leaked documents.
Meanwhile, Lindsey Graham was the only Republican senator who pushed Kavanaugh to be more forceful about whether the Supreme Court could overturn Roe, arguing that prior justices had far overstepped their judicial authority to provide a right to abortion.
“I hope that one day the court will sit down and think long and hard about the path they’ve charted,” Graham said.
Kavanaugh declined to directly address Graham’s comments, only offering that Roe remains a constitutional ruling.