Some liberal activists and journalists are touting a newly released email that Brett Kavanaugh wrote in 2003 as a “bombshell” that could put his confirmation in peril. The New York Times reports:
The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.
Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Judge Kavanaugh proposed deleting that line, writing: “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.”
But the email is more of a dud than a bombshell. Attorney George Conway, a Republican and staunch critic of President Trump, had a pithy response: “Kavanaugh was expressing an *uncertain* view (‘not sure’) about what *other people* (‘all legal scholars’) were saying. Yawn.” As Charlie Savage, author of the New York Times scoop, acknowledges: “Still, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.”
Kavanaugh was asked about the email first thing this morning under questioning by Democratic senator Dianne Feinstein of California. “It was referring to the views of legal scholars, and I think my comment in the email is that might be overstating the position of the legal scholars, so it wasn’t a technically accurate description in the letter of what legal scholars thought. At that time, I believe Chief Justice Rehnquist and Justice Scalia were still on the court,” Kavanaugh said. “But the broader point is that it was simply overstating something about legal scholars, and I’m always concerned with accuracy. And I thought that was not a quite accurate description of all legal scholars because it referred to all.”
Throughout the hearings, Kavanaugh has repeatedly discussed the important role that legal precedent plays for Supreme Court justices, but he also indicated he would follow the precedent of the eight sitting Supreme Court justices in declining to provide any hint about whether he would overturn any decision, including Roe, that could potentially come before the court.
Democrats can only defeat Kavanaugh if they all vote against him and peel off two Republican senators who back abortion rights (Susan Collins of Maine and Lisa Murkowski of Alaska). But neither Collins nor Murkowski has suggested Kavanaugh should be subjected to a pro-Roe litmus test that no sitting Supreme Court justice had to pass.
