Leaked Documents Show Kavanaugh Isn't So Sure Roe v. Wade Is 'Settled' After All

By Rafi Schwartz | September 6, 2018 | 2:56pm

Congress

Leaked documents obtained by the New York Times and published Thursday show that despite his public claims that the Supreme Court ruling which struck down abortion bans as unconstitutional is “settled law,” privately President Donald Trump’s Supreme Court nominee Brett Kavanaugh isn’t quite so sure that the precedent is, in fact, all that settled.

In an email from March 2003, Kavanaugh—then working as an attorney for the George W. Bush administration—proposed cutting a line from a draft of an opinion piece being worked on in support of conservative court nominees. The document 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.”

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Kavanaugh, however, proposed cutting 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.

The comment appeared to fly directly in the face of Maine Republican Senator Susan Collins’ claim that Kavanaugh had told her he believed Roe v Wade was, in fact, settled. What’s more, it seemingly contradicted his testimony before the Senate Judiciary Committee hearing on Wednesday, where he told committee members that Roe v. Wade was “an important precedent of the Supreme Court that has been reaffirmed many times.” He also described it as having been “reaffirmed many times over the past 45 years” in subsequent court decisions.

Of course, those answers belied the reality of his potential confirmation—one which would likely make him the deciding vote whether or not to overturn that very precedent should a challenge to Roe make it to the Supreme Court.

The Times notes that the email obtained does not specifically point to Kavanaugh personally believing Roe v Wade should be overturned. Given the overwrought efforts by Senate Republicans to keep hundreds of thousands of pages of documents pertaining to Kavanaugh’s nomination out of the public, however, it seems safe to assume that there is at least a perceived risk among his supporters that should his true feelings about a woman’s right to choose be made known, it could damage his confirmation chances.