In leaked email, Supreme Court nominee Brett Kavanaugh challenged Roe v Wade precedent, and said 'Court can always overrule'

  • Supreme Court nominee Brett Kavanaugh wrote in a secret 2003 email that the Roe v. Wade landmark abortion ruling may not be considered "settled law of the land."
  • The email was leaked to The New York Times, which published it Thursday.
  • The abortion ruling has been a flash point in Kavanaugh's confirmation process, which are in the third day of hearings.
Supreme Court nominee Judge Brett Kavanaugh answers questions during the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. 
Win McNamee | Getty Images
Supreme Court nominee Judge Brett Kavanaugh answers questions during the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. 

Supreme Court nominee Brett Kavanaugh wrote in a secret 2003 email that the Roe v. Wade landmark abortion ruling may not be considered "settled law of the land." The email was leaked to The New York Times, which published it Thursday.

In the exchange, written while he was working as an attorney in the George W. Bush White House, Kavanaugh proposed deleting a line from a draft opinion article that said: "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, whose confirmation hearing are underway on Capitol Hill, said in the email he was not sure that Roe was considered settled "since Court can always overrule its precedent, and three current Justices on the Court would do so."

The email was provided to lawmakers but not approved for public release.

The abortion ruling has been a flash point in Kavanaugh's confirmation process, which entered its third day of hearings Thursday morning. Asked about the email on Thursday, Kavanaugh told Sen. Dianne Feinstein, D-Calif., that he was not offering his own opinion on Roe but was instead summarizing the views of other scholars.

While Kavanaugh's confirmation is widely considered likely, the GOP holds only a narrow majority in the Senate. Two moderate Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, have said Kavanaugh's position on the issue could be a significant factor in their votes.

Collins told reporters last month that Kavanaugh indicated to her in private that Roe was settled, though Democrats and reproductive rights activists said the remark was a dodge.

On Wednesday, Kavanaugh sought to tamp down fears that he would overturn or roll back the ruling. Kavanaugh said that Roe was "an important precedent of the Supreme Court that has been reaffirmed many times." He referred to Planned Parenthood v. Casey, the 1992 abortion case that reaffirmed Roe's central holding, as "precedent on precedent."

Abortion rights activists have opposed Kavanaugh's nomination, citing President Donald Trump's claim that he would nominate judges to the court who would "automatically" overturn Roe. Also in the limelight is a remark Kavanaugh made last year praising former Supreme Court Justice William Rehnquist, a dissenter in Roe, as Kavanaugh's "judicial hero."

Feinstein, the top Democrat on the Judiciary Committee, said Wednesday that Kavanaugh's comments about Roe were not enough.

"We can't accept vague promises from Brett Kavanaugh when women's reproductive freedom is at stake," the lawmaker's office tweeted.

The leak of the email comes as Democratic senators have demanded the release of hundreds of thousands of pages of documents from Kavanaugh's former work. Sen. Cory Booker threatened on Thursday to release "committee confidential" documents, noting that he would be "knowingly violating the rules."

The New Jersey senator's threat was joined by fellow Democrats Mazie Hirono and Dick Durbin of Illinois.

Correction: An earlier version misstated Hirono's party. She's a Democrat.

Read the full article in The New York Times.