Sen. Dianne Feinstein ‏asks Supreme Court nominee Brett Kavanaugh about Roe v. Wade.

PBS NewsHour/YouTube The New York Times Remix by Samantha Grasso

Leaked email contradicts Kavanaugh’s statement that ‘Roe v. Wade’ is precedent

Many believe this proves he will try to overturn the legal right to an abortion.


Samantha Grasso


Posted on Sep 6, 2018   Updated on May 21, 2021, 7:09 am CDT

In 2003, during his time as a White House lawyer under former President George W. Bush, Supreme Court nominee Brett Kavanaugh once wrote that he wasn’t sure “all legal scholars refer to Roe [v. Wade] as the settled law of the land at the Supreme Court level.”

The statement was written in an email of thousands of “committee confidential” documents turned over to the Senate Judiciary Committee and anonymously leaked to the New York Times.  It contradicts an answer Kavanaugh gave to Sen. Dianne Feinstein during the second day of his confirmation hearings, during which he called Roe v. Wade an “important precedent of the Supreme Court.”

According to the Times, the email was among several that an “unknown” person secretly emailed to the publication. In the email, Kavanaugh was offering suggestions to a draft opinion piece written by supporters of an appeals court nominee selected by Bush. The draft read “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 contested that line, however, 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.”

According to the Times‘ analysis, Kavanaugh’s email specifically referred to then-sitting justices who had dissented against Planned Parenthood v. Casey, who might not have viewed Roe as “settled law.” The publication also concluded that Kavanaugh stopped short of “saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.”

Speaking the Senate Judiciary Committee on Wednesday, a day before the leak, Kavanaugh stated that he saw the Supreme Court ruling as precedent. He also previously told Sen. Susan Collins (R-Maine) that the ruling was “settled law,” leading her to believe, she has asserted, that he wouldn’t vote to overturn Roe v. Wade.

However, across Twitter many saw this unearthed email as a smoking gun to Kavanaugh’s personal beliefs regarding Roe v. Wade and its ability to be overturned, proving that he mislead senators and would be a threat to a woman’s right to abortion if voted to the Supreme Court.

Initially, the confidentiality of these documents meant that they couldn’t be made public, nor asked about during Kavanaugh’s hearings. However, on Thursday, after the Times story broke, Feinstein read the email to the nominee during his hearing and asked him again if Roe v. Wade was “correctly settled.” Kavanaugh downplayed his response, stating that he specifically speaking about “legal scholars” such as then-Justices Antonin Scalia and William Rehnquist, and not his own personal views. He again stated that Roe had been reaffirmed “many times.”

Other documents sent to the publication showed Kavanaugh’s questioning the use of “warrantless surveillance” after the Sept. 11 terrorist attacks, and criticizing the Department of Transportation’s affirmative action regulations.

Another email also showed Kavanaugh coaching an appeals court nominee to tell the Democratic senators she was meeting with to “say that she has a commitment to follow Supreme Court precedent…that she will adhere to statutory text, that she has no ideological agenda.”

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*First Published: Sep 6, 2018, 12:02 pm CDT