On Wednesday, Sen. Dianne Feinstein (D-CA) asked Brett Kavanaugh whether or not his views on Roe v. Wade had changed since his time working in the George W. Bush White House. The D.C. Circuit judge and President Trump’s latest Supreme Court nominee responded by saying he didn’t know what she meant.
By the time Kavanaugh’s confirmation hearings resumed Thursday, his position was clear. On Thursday morning, the New York Times published an email Kavanaugh wrote in 2003, advising a colleague to strike language from a draft op-ed asserting that legal scholars “widely accepted… across the board” that Roe v. Wade and related cases like Casey v. Planned Parenthood were settled law.
Kavanaugh disputed the notion, 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.”
Brett Kavanaugh had no problem saying Roe v. Wade is “settled law” but he refused to tell me if he thought it was correctly decided. His own email shows what he believes about the Supreme Court’s ability to overturn Roe. This is #WhatsAtStake, plain and simple. pic.twitter.com/7dq3ITnuS3
— Sen Dianne Feinstein (@SenFeinstein) September 6, 2018
Today, many fear (with reason), that four out of eight sitting justices would be inclined to overturn Roe, and Kavanaugh’s addition to the court could make five.
That is precisely why Sen. Susan Collins, a pro-choice Republican from Maine, made a point of asking Kavanaugh about Roe when the two met in her office a few weeks ago. Afterward, Collins told reporters the judge had assured her he agreed with Chief Justice John Roberts, who told the Senate in 2005 that he viewed Roe was “settled law” — the term Kavanaugh disputed in his email.
I asked Judge Kavanaugh about this Roe v. Wade email—despite Chairman Grassley purportedly designating it as “committee confidential,” which isn’t permitted under Senate rules—because Americans deserve transparency, not concealment: https://t.co/FC2s0qG1xo pic.twitter.com/ZhDEjlGOHi
— Richard Blumenthal (@SenBlumenthal) September 6, 2018
On Thursday, Feinstein asked Kavanaugh again if he believes Roe is settled law and whether he believes it was decided correctly. The judge responded by laying out a detailed argument explaining why the court typically respects longtime precedent, like Roe, especially when it has been affirmed by a second decision, as Roe was with Casey. (It’s “precedent on precedent” he said.) In doing so, Kavanaugh made the case for why legal scholars agree that Roe is “the settled law of the land” — again, that’s point he’d previously disputed — but he refused to answer Feinstein’s question about his own personal views.
The reason that matters is because Kavanaugh’s personal views on Roe are — and have been, for a long time — far outside the mainstream perspective that he articulated to Collins a few weeks ago and before the Senate Judiciary committee on Thursday. That fact is clear in Kavanaugh’s 2003 email. It was clear when he decided Garza v. Hargan last fall. (His opinion was overturned by the full court because it violated a principle the court outlined in Casey, that the state cannot create an “undue burden” on women seeking abortion.) And it was clear last year, when, in a speech to the American Enterprise Institute, Kavanaugh said Roe was wrongly decided.
There is overwhelming evidence that Kavanaugh would like to see reproductive rights in America rolled back significantly, but that he is willing to say whatever he needs to — to Lisa Murkowski, Susan Collins and members of the judiciary committee — to get on the bench.
In another email from his Bush administration days, Kavanaugh laid out exactly how an anti-abortion nominee should handle such questions. He advised that the judge “should not talk about her views on specific policy of legal issues… She should say that she has a commitment to follow Supreme Court precedent.”
Rolling Stone reached out to both Sen. Collins and Sen. Murkowski for comment. A representative for Collins said the senator was “continuing to study his voluminous record” and, at this point, “she has not rendered a judgment.”
Murkowski’s office has yet to respond.