If that headline struck you as not-terribly-shocking, you must not be a Democrat desperate to block Judge Kavanaugh’s confirmation. The NY Times has received some leaked documents from Kavanaugh’s time as a lawyer in the George W. Bush administration. One of those is an email relating to a pro-life opinion piece:
Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. 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.”
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, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.
Yesterday, Senator Kamala Harris spent several minutes interrogating Kavanaugh on a similar point. After a question about Roe, Harris asked, “As a factual matter, can five Supreme Court Justices overturn any precedent at any time if a case comes before them on that issue?” Kavanaugh eventually admitted that the court could do so but kept emphasizing that it would be rare for the court to do so, especially as a precedent remained on the books for a long time. This clip is queued up to Harris’ question:
The question seems prompted by Kavanaugh’s statement in the email but there’s no real payoff, no gotcha. Kavanaugh didn’t reveal a secret in his email. In fact, he said the same thing to Harris that he said in the email, i.e. five justices can in theory overturn any precedent. That’s not particularly controversial. It’s only the application of that bland fact to the possible future of Roe v Wade that makes this exciting enough to become the focus of a piece in the NY Times or a question by Senator Harris.
There are more leaked emails in the Times’ piece:
In yet another, he offered advice for an appeals court nominee who was scheduled to meet with two Democratic senators:
“She should not talk about her views on specific policy or legal issues,” he wrote. “She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”
Again, all of this sounds like good advice both professionally and politically. It’s what judges on both sides of the aisle have done for decades, especially when meeting with members of the opposite party. The idea that this is suddenly suspect is ridiculous. Every Democratic Supreme Court nominee has promised to follow the law not to write it during their confirmation hearings, even though we all suspect they don’t really believe that. Here’s Judge Sotomayor discussing this very issue nine years ago: