After days of demands from Democrats that additional documents on Brett Kavanaugh’s record be released, leaked emails originally blocked from public view provide a closer look at the nominee’s views on abortion.
One 2003 email, obtained by The New York Times, includes comments from Kavanaugh in a review of an opinion piece supporting two judicial nominees. At the time, Kavanaugh was working for the George W. Bush administration.
In the email, Kavanaugh says that it may not be accurate to call Roe v. Wade—the Supreme Court’s landmark decision that ruled abortion falls under privacy rights—”settled law.”
“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 said.
The three justices he mentions are likely Antonin Scalia, Clarence Thomas and William Rehnquist, who sat on the court at the time and dissented in the 1992 Planned Parenthood v. Casey case that upheld the Roe decision.
In the hearings so far, Kavanaugh has declined to dive into his personal views on abortion or comment on any potential legal challenges to Roe, asserting the need for “judicial independence.” He said that the Roe decision is a longstanding Supreme Court precedent, which was reaffirmed in the Casey ruling—but the court has overturned precedent before.
Democrats have pushed Kavanaugh on abortion over the past several days of questioning. Sen. Richard Blumenthal, D-Conn., noted late Wednesday that in his decision in the case of a young immigrant seeking an abortion, he said her situation was an “abortion on-demand"—a common phrase used among in anti-abortion advocates.
Blumenthal also said Kavanaugh’s use of the term “current precedent” for Roe raises a red flag.
“It’s like somebody introducing his wife to you as ‘my current wife,’” Blumenthal said. “You might not expect that wife to be around for all that long.”
Sen. Amy Klobuchar, D-Minn., also on Thursday questioned Kavanaugh on the difference between “settled law”—another way he’s described Roe—and “current precedent.” For example, Kavanaugh has repeatedly noted Brown v. Board of Education—which kicked off racial integration in schools—as law that is firmly settled.
Kavanaugh declined to offer a clear description of the difference, instead deferring once again to the “Ginsburg Standard” of previous nominees, who would not comment on potential precedent that could come before the court in their tenures.
“None of the currently sitting Supreme Court justices opined” on Roe during the confirmation process, he said.