The Slatest

Leaked Email Shows Kavanaugh Questioned Whether Roe Was “Settled Law”

Supreme Court nominee Brett Kavanaugh testifies during the second day of his Supreme Court confirmation hearing.
Supreme Court nominee Brett Kavanaugh testifies during the second day of his Supreme Court confirmation hearing. Zach Gibson/Getty Images

In a dramatic moment on Thursday morning, Democratic Sen. Cory Booker announced that he would release previously secret documents from Supreme Court nominee Brett Kavanaugh’s time in the White House Counsel’s office under George W. Bush. The documents reveal Kavanaugh’s skepticism toward the description of Roe v. Wade as “settled law”—even though the nominee said on Wednesday that Roe was “settled as precedent.” They also indicate Kavanaugh’s hostility toward affirmative action programs, condemning a race-conscious federal regulation as a “naked racial set-aside.”

Under Senate rules, Booker is not permitted to release the documents, which are marked “committee confidential,” to the full chamber or the public. They received that designation from William Burck, a Republican attorney who previously worked for Kavanaugh and now represents current White House Counsel Don McGahn. Because Republicans rushed these hearings before the National Archives could complete its review, Burck has been tasked with choosing which documents from Kavanaugh’s White House tenure may be disclosed. But Booker flouted Burck’s restrictions on Thursday, with the support of his Democratic colleagues, daring Senate Judiciary Committee Chairman Chuck Grassley, a Republican, to “expel him.”

Moments after Booker’s revelation, the New York Times published several emails that Kavanaugh wrote during his years in the White House Counsel’s office involving abortion, affirmative action, warrantless surveillance, and campaign finance laws. In one email, written in March 2003, Kavanaugh proposed deleting a line from a draft op-ed which 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.”

Kavanaugh disagreed with that line. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level,” he wrote, “since Court can always overrule its precedent, and three current Justices on the Court would do so.” (At the time, Chief Justice William Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas, had expressed a clear desire to reverse Roe.)

As a factual matter, this statement is certainly correct. But it casts doubt on the candor of Kavanaugh’s earlier testimony before the committee. When Democratic Sen. Dianne Feinstein asked Kavanaugh about Roe on Wednesday, he told her: “It’s settled as a precedent of the Supreme Court entitled the respect under principles of stare decisis.” That, too, is true—but clearly Kavanaugh has more nuanced thoughts about just how “settled” it is, and how much “respect” it deserves. He failed to mention these qualms to the committee. Moreover, Feinstein asked Kavanaugh if his “views about whether Roe is settled precedent changed” since he was “in the Bush White House.” Kavanaugh responded cagily: “I’m not sure what [you’re] referring to about the Bush White House.” Again, the nominee declined to delve into his rather more sophisticated thoughts on Roe as settled law when he worked for a White House dedicated to overturning it.

Elsewhere in the email, Kavanaugh complained about the op-ed’s comparison of a Bush nominee to Justice David Souter, a Republican appointee who drifted left. The piece should not “imply that she is another Souter,” Kavanaugh wrote, using common shorthand for Republican judicial nominees who refuse to cleave to the GOP platform.

In another leaked email from 2001, Kavanaugh corresponded with a Justice Department attorney about the constitutionality of the warrantless surveillance of phone and email conversation of non-citizens in the United States. Yet he testified in 2006 that he had never seen or heard anything about the Bush administration’s warrantless surveillance program until it leaked to the press. In a 2001 email, Kavanaugh harshly criticized proposed Department of Transportation regulations that would benefit minority-owned businesses, dismissing them as “a lot of legalisms and disguises to mask what is a naked racial set-aside.” And in a 2003 email, Kavanaugh condemned a lower court for upholding a law that barred corporations and unions from using general treasury funds to pay for ads attacking or supporting a candidate for federal office.

The decision, Kavanaugh wrote, was “both strange and dangerous.” He hoped the Supreme Court would “not care” and reverse it, expecting either Rehnquist or Justice Sandra Day O’Connor to be the swing vote. In the end, O’Connor did cast the fifth vote to uphold the limitations. But the Supreme Court reversed her decision after Justice Samuel Alito replaced her.

In the end, these documents don’t tell us anything we don’t already know about Kavanaugh. If confirmed, he will vote to overturn Roe, abolish affirmative action, uphold mass digital surveillance, and scrap what’s left of campaign finance limits. It remains an open question whether Democrats were wise to fixate on the suppression of these documents rather than zero in on Kavanaugh’s contentious conservative views, most of which are already on record. But at a minimum, the leaked emails further confirm what senators like Susan Collins are attempting to deny: Kavanaugh is a locked-in vote to effectuate the GOP agenda on day one.