Day 3: Leaked Email Reveals Judge Kavanaugh’s Views on Roe and “Precedent”

Concept of “settled law” rules the day—but past Judge Kavanaugh emails are unsettling

Today was the last chance for the Senate and the American public to hear Judge Brett Kavanaugh's views on the constitutional right to abortion—yet he continued to refuse to answer questions about how he views the merits of landmark Supreme Court decisions on abortion. His stance is especially troubling in light of leaked “committee confidential” emails from when Judge Kavanaugh served in the Bush White House in 2003 and was writing on judicial nominees.

Before the Senate Judiciary Committee on Wednesday and Thursday, Judge Kavanaugh testified that Roe is “settled law” and “precedent.” This is a description of what the court has done, but does not answer whether he agrees with the decision.

An email written by Judge Kavanaugh on March 24 2003, obtained this morning by The New York Times, reinforces this: "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 referring to Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, who have all expressed in opinions that Roe was wrongly decided and should be overturned.

Kavanaugh has previously referred to Rehnquist and Scalia as his judicial heroes and praised their respective dissents in Roe and Planned Parenthood v. Casey that reject the constitutional protection of the right to abortion.

At today’s hearing, Senator Dianne Feinstein (D-CA) pressed Judge Kavanaugh on the email and, once again, whether he believes Roe was correctly decided. She asked, “This [email] has been viewed as you saying that you don't think Roe is settled… so please, once again, tell us why you believe Roe is settled law and if you could, do you believe it is correctly settled?”  In response, Judge Kavanaugh proved unwilling to provide a definitive answer, choosing instead to give mere description. “All the justices have not given hints or forecasts or previews… I need to follow that nominee precedent here.” (The term “nominee precedent” seems to be his substitute for the so-called “Ginsburg rule.”)

Judge Kavanaugh is well aware that the Supreme Court can overturn or gut precedent when given the opportunity. Although Roe is strong precedent that has been repeatedly reaffirmed by the Court, it would take only five justices to overturn or gut it—and the email released this morning suggests that Judge Kavanaugh has been keeping a tally for years.

Based on the Center’s analysis of Judge Kavanaugh’s record and his repeated refusal to answer questions —especially considered in light of today’s revelations—it is clear that his judicial philosophy is fundamentally hostile to the protection of reproductive rights. The American people want and deserve a Supreme Court nominee who respects the basic liberties guaranteed to all of us. Judge Kavanaugh’s confirmation hearing is proving that he is not that nominee.

Click here to see our recap of day one and day two of Judge Kavanaugh's confirmation hearing.