September 7, 2018
As White House Staff Secretary during the administration of President George W. Bush, Brett Kavanaugh reviewed “literally every [policy] document that went to the Oval Office,” according to then-Deputy Chief of Staff Karl Rove, who described the current SCOTUS nominee’s role at the time as “central” to Newsweek in July.
Bush also nominated Kavanaugh for the position of judge on the D.C. Circuit Court of Appeals—a role he has played since 2006.
Now, it has come out that, during Bush’s term in office, Kavanaugh questioned 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 and posted on its site on September 6.
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 that it could not be made public or discussed by Democrats in questioning him in hearings this week.
However, it was among several communications leaked to the Times late on September 5.
According to that news outlet, Judge Kavanaugh was considering a draft opinion piece that supporters of one of Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It 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.”
However, Judge Kavanaugh proposed deleting 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.”
He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey.
The court now has four conservative justices who may be willing to overturn Roe—Justices Thomas and John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.
Still, the Times noted, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.
Democrats have complained about relying on the advice of Bush’s lawyer rather than the National Archives to decide what to provide to the Senate, as one part of a larger faceoff over how many documents from Kavanaugh’s stint in the Bush administration the Senate and public should be able to vet before his confirmation vote.
Other leaked materials provided to The Times included a document showing that in September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance—even before the Bush administration began its warrantless surveillance program.
And in yet another, Kavanaugh disparage Department of Transportation affirmative action regulations, writing: “The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” he wrote, adding that he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”
What’s more, on September 6, other potentially compromising emails were released by Senator Cory Booker (D-New Jersey), who posted a series of emails about racial issues that included the affirmative action-related email obtained by The Times.
Meanwhile, In an ABC News/Washington Post poll released on Tuesday morning, Americans were split on Kavanaugh’s nomination to the U.S. Supreme Court— coming in at the the lowest support levels for a high court nominee in polling back to 1987. Thirty-eight percent of Americans say Kavanaugh should be confirmed, 39% not, with the rest undecided in this poll, produced for ABC by Langer Research Associates. Only two nominees have had weaker public support: Harriet Miers, who withdrew her nomination, in 2005; and Robert Bork, rejected by the Senate in 1987.
Research contact: @charlie_savage