Emails written by Supreme Court nominee Brett Kavanaugh leaked late Wednesday to the New York Times seem to contradict what the judge told the Senate Judiciary Committee on whether he considered the Roe v. Wade abortion rights ruling subject to being overturned.
In an email written when he was a lawyer in the White House under President George W. Bush, Kavanaugh gave advice on how to amend a document that characterized Roe v. Wade as “the settled law of the land.”
“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 in the email deemed “committee confidential” and withheld from the public record before being leaked to the Times by an anonymous source.
But in an exchange with Sen. Dianne Feinstein at Wednesday’s confirmation hearing, Kavanaugh sounded a different tone. Feinstein repeatedly pressed Kavanaugh on whether the high court’s precedent meant that Roe could not be overturned.
“As a general proposition I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh said Wednesday, later adding, “I said that it’s settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis, 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, as you know.”
Not satisfied that citing precedent meant that Kavanaugh would not join other conservative jurists to effectively overturn Roe, Feinstein tried a more direct tact.
“What would you say your position is today on a woman’s right to choose?” Feinstein asked.
“As a judge it is an important precedent of the Supreme Court,” Kavanaugh replied. “By ‘it,’ I mean Roe v. Wade and Planned Parenthood v. Casey, been affirmed many times. Casey is precedent on precedent.”
Democrats on the Senate Judiciary Committee complained bitterly Thursday that thousands of documents deemed “committee confidential” were dumped on the committee at the last minute and were not made public. After being warned by Sen. John Cornyn, R-Texas, that he might face expulsion from the Senate after he made one of Kavanaugh’s email exchanges public, Sen. Cory Booker, D-N.J., replied, “Bring it!”
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