Newly released Brett Kavanaugh emails contradict testimony that he believes Roe v. Wade is ‘settled law’

Sept. 06--Newly unearthed emails of Supreme Court nominee Brett Kavanaugh contradict confirmation committee testimony he gave this week indicating that he supports the landmark abortion rights law Roe v. Wade.

The correspondence, which was obtained by the Daily News on Thursday, could prompt some of the Senate's more moderate Republicans to think twice about confirming Kavanaugh to replace outgoing Supreme Court Justice Anthony Kennedy.

In the March 2003 email chain, Kavanaugh and other White House staffers were brainstorming how to write an opinion piece that could persuade anti-abortion activists to support one of President Bush's judicial nominees.

The initial 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 proposed substituting that line with, "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."

Kavanaugh, 53, was most likely referring to then-Supreme Court Justices William Rehnquist and Antonin Scalia and Justice Clarence Thomas, all of whom dissented in the 1992 Planned Parenthood v. Casey decision, which reaffirmed Roe's conclusion that a woman has a constitutional right to abortion.

The Supreme Court is currently stacked with four conservative justices who may be willing to overturn or undermine the 1973 abortion ruling: Thomas, John Roberts, Samuel Alito and Neil Gorsuch. If he's confirmed, Kavanuagh could provide the pivotal fifth vote to effectively gut the law.

While Kavanaugh's email challenges Roe as "settled law," it doesn't necessarily express his personal opinion -- a distinction he zeroed in on at Thursday's hearing.

He argued he was not discussing his views in the email but rather "what legal scholars might say."

Democrats didn't buy that argument and urged Sens. Susan Collins (R-Maine) and Lisa Murkowsi (R-Alaska) to reconsider. Both senators have said they won't confirm a Supreme Court nominee who would overturn Roe. If they manage to hold the party line, Democrats need two Republicans to break ranks in order to block Kavanaugh's nomination.

"The signs and signals are plain," Sen. Richard Blumenthal (D-Conn.) said at Thursday's hearing about Kavanaugh's view on Roe.

Spokespeople for Collins and Murkowski did not return requests for comment.

Kavanaugh, a longtime conservative and current federal appeals court judge, has consistently declined to express his personal opinion on Roe, but has on several occasions said he considers the ruling "settled law."

Democrats have questioned Kavanaugh's commitment to that pledge, noting President Trump promised during the campaign to only appoint jurists to the Supreme Court who would overturn Roe.

The missives were among thousands of documents turned over to the Senate Judiciary Committee labeled "committee confidential," meaning senators can review them but not discuss them in public or at the confirmation hearings.

Echoing criticism from fellow Democrats, Sen. Dianne Feinstein (D-Calif.) laid into her Republican colleagues Thursday afternoon over withholding thousands of records from Kavanaugh's White House tenure, including ones pertaining to Roe.

"Allowing senators to review documents but not use them in public hearings to question Brett Kavanaugh is unprecedented," Feinstein tweeted. "This isn't about confidentiality, this is about hiding Kavanaugh's views."

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