One of the frustrations in examining Judge Brett Kavanaugh’s Supreme Court nomination is that so much of his record has been shielded from view. There’s no modern precedent for such secrecy surrounding a nominee for the nation’s highest court.
But occasionally, secrets come into the light. The New York Times reported this morning:
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,” according to a secret email obtained by The New York Times.
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.
In context, a conservative group wanted to publish an opinion piece in support of a Bush/Cheney judicial nominee, and it said 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.”
Kavanaugh apparently wasn’t comfortable with the text. “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 wrote at the time.
And while this may not seem terribly surprising – Kavanaugh is a very conservative jurist who appears to oppose abortion rights – the 2003 email strikes a very different note than the one he’s shared on Capitol Hill.
We know, for example, that Kavanaugh told Sen. Susan Collins (R-Maine), one of only a handful of pro-choice Republicans still in Congress, that he sees the Roe v. Wade debate as “settled as a precedent of the court” and “settled law.”
He used similar language during his confirmation hearing yesterday, describing Roe as “settled as a precedent of the Supreme Court.”
There seems to be some distance between what he wrote in 2003 and what he’s said in 2018.
This isn’t the only meaningful revelation in the documents obtained by the Times. I’ll have more on this as the day progresses.