Judge Brett M. Kavanaugh as a White House lawyer in the Bush administration advised against referring to the Supreme Court’s decision in Roe v. Wade as the “settled law of the land,” according to a 2003 email.
“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,” Kavanaugh wrote after reviewing a draft of what was intended to be an op-ed in favor of a judicial nominee.
The email was first given to the New York Times and has since been made public by the Senate Judiciary Committee. It was among emails deemed “committee confidential” and not made public, although it was unclear what it was about the memo that prevented its earlier release.
Those emails have provided an explosive beginning to the second day of questioning of Kavanaugh, now a judge on the U.S. Court of Appeals for the D.C. Circuit. Democrats on the committee say they are ready to face expulsion to make some of the emails available.
At his questioning Wednesday, Kavanaugh refused to say whether he believes Roe, which guaranteed a woman’s right to an abortion, was correctly decided. But he said the Supreme Court had affirmed it in subsequent cases.
“I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh told Sen. Dianne Feinstein (D-Calif.), referring to it as “precedent upon precedent.”
The memo at issue concerns Kavanaugh’s role in promoting the nomination of Priscilla Owen, who was nominated by President George W. Bush for the U.S. Court of Appeals for the 5th Circuit. Democrats called her extreme, and her nomination did not come to a floor vote. After the 2002 election, when Republicans gained control of the Senate, Kavanaugh participated in a number of efforts to bolster her renomination.
On March 23, 2003, Kavanaugh wrote an email about a proposed op-ed supporting Owen’s nomination. The draft of the op-ed was designed to undercut Democratic complaints that Owen would overturn Roe.
The draft said that “it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Kavanaugh seemed to dismiss the importance of that argument, and said the more important point was that Owen would have no ability to overturn Roe as an appeals court judge.
At Thursday’s hearing, Feinstein read aloud from the email and said it has “been viewed as you saying you don’t think Roe is settled,” and asked him to explain.
Kavanaugh said he was referring not to his own views but to the “views of legal scholars.”
Sen. Susan Collins (R-Maine) has said she would not vote for a nominee who threatens Roe. She said that in a meeting with Kavanaugh, he referred to Roe as “settled law.”
Feinstein specifically asked Kavanaugh about that Wednesday.
“Senator, I said that it’s settled as a precedent of the Supreme Court, entitled the respect under principles ‘stare decisis,’ ” referring to the legal principle of not overturning precedents. “And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.”
Feinstein was not satisfied, saying that she has sat through nine prior Supreme Court nominations, and each nominee has declared an intent to follow stare decisis “and they get confirmed and then, of course, they don’t.”
When Kavanaugh in the memo referred to three justices willing to overturn Roe, he was referring to Justices William Rehnquist, Antonin Scalia and Clarence Thomas, who had expressed opposition.
Thomas remains on the court and has been joined by three conservative colleagues — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Neil M. Gorsuch. Roberts and Alito have voted for abortion restrictions.
Abortion rights supporters fear — and those opposed to abortion are optimistic — that Kavanaugh could help form a majority to either overturn Roe or approve more restrictions on abortions.