What am I missing?
Journalists and politicos gasped Thursday morning after the New York Times published a leaked 2003 email that Judge Brett Kavanaugh wrote when he served in the Bush administration. Some have gone so far as to characterize the Times scoop as a “bombshell.”
I’m not seeing it.
“The NYT has obtained some of the secret ‘committee confidential’ Kavanaugh emails Republicans have kept secret, including one in which he challenges a description of Roe v. Wade as the ‘settled law of the land,’” Times reporter Charlie Savage promised his readers.
The Daily Beast’s Sam Stein called the story a “bombshell.”
The Times’ Maggie Haberman called the report a “bombshell.”
New York magazine’s Cristian Farias called it a “bombshell.”
“Boom,” said the Times’ Glenn Thrush, in the perfect middle-aged white male response.
The email, which shows Kavanaugh offered edits to an op-ed pertaining to abortion rights and the Supreme Court’s 1973 Roe v. Wade decision, comes from a collection of electronic correspondences marked “committee confidential.” These emails were not released to the public or Democratic lawmakers prior to Kavanaugh’s Supreme Court confirmation hearings.
In political circles, the reaction was similar to the response from the press.
“This is a direct violation of what [Sen. Susan Collins, R-Maine] said her standard was. There is no way she can credibly vote for him without being exposed as a giant hypocrite,” said Hillary Clinton’s 2016 campaign spokesman Brian Fallon.
Topher Spiro with the Center for American Progress added elsewhere, “BREAKING: A secret email reveals Kavanaugh’s true position on Roe v. Wade, which is the opposite of what he told [Sen. Susan Collins, R-Maine]. Now we know why the GOP wanted to keep these documents secret.”
It’s newsworthy that someone leaked this 2003 email to the Times. It’s newsworthy that the Times claims it has no idea who provided its newsroom with the email. And there’s certainly news value to previously undisclosed Kavanaugh emails.
But I’m not seeing the Roe “bombshell” that other reporters say they see in this report.
Here’s what the Times reported [emphasis added]:
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.”
He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey. The court now has four conservative justices who may be willing to overturn Roe — Justices Thomas and John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.
Still, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.
In short, Kavanaugh offered edits to an op-ed he didn’t write wherein he noted correctly that not all legal scholars would say Roe v. Wade is settled law.
He wasn’t saying that was his own personal view, but that the opinion piece would be incorrect to say “all legal scholars” agree on Roe. That’s a change that any good fact-checker or editor would recommend to ensure accuracy, whether they’re pro-life or pro-choice.
That’s it. That’s all the report says about Kavanaugh and his thoughts on Roe. Again, what am I missing? Where’s the “bombshell”?
Perhaps politicos and reporters failed to read past the Times’ opening paragraph, which reads, “As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be ‘settled law of the land’ …”
Well, yeah. That sounds sensational. But the story doesn’t quite deliver on that Roe promise, does it?
