Sen. Dianne Feinstein (D-Calif.) grilled Supreme Court nominee Brett Kavanaugh on Thursday over a previously confidential email in which he disputed the notion of a consensus that abortion was a “settled” right under the Constitution.
Kavanaugh (pictured above right) wrote the email, originally marked “confidential” but which now is public, when he worked as a lawyer in the White House during George W. Bush’s presidency. It concerned a draft of an op-ed that Kavanaugh reviewed.
The nominee suggested editing a sentence that referred to the view of legal scholars that Roe v. Wade was the “settled law of the land.”
Wrote Kavanaugh: “I’m not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since this court can always overrule its precedent. And three current justices on the court would do so.”
Feinstein (pictured above left) asked Kavanaugh how the email informs his views on the contentious issue.
“This has been viewed as you saying that you don’t think Roe is settled,” she said.
Kavanaugh responded that his concern was accuracy and not necessarily a reflection of his own judgment.
“In that draft letter, it was referring to the views of legal scholars, and I think my comment in the email was that that might be overstating the position of legal scholars,” he said. “And so, it wasn’t a technically accurate description in the letter of what legal scholars thought at that time.”
As to how he would approach the issue on the bench, Kavanaugh fell back on statements he has offered earlier in the hearing.
“Roe v. Wade is an important precedent of the Supreme Court,” he said. “It’s been reaffirmed many times. It was reaffirmed in Planned Parenthood vs. Casey in 1992, when the court specifically considered whether to reaffirm it or whether to overturn it … That makes Casey precedent on precedent.”
Related: Kavanaugh Tackles Roe v. Wade During Confirmation Hearing
Kavanaugh noted that former Chief Justice William Rehnquist reaffirmed Miranda v. Arizona, despite having criticized the original decision requiring police to inform criminal defendants of their rights and mandating the government to provide poor criminal defendants with attorneys.
But Kavanaugh declined to answer Feinstein’s question about whether he views Roe v. Wade to be correctly decided.
“I have to follow what the nominees who’ve been in this seat before have done,” he said, referring to the common practice of nominees’ refraining from discussing their views on issues likely to come before the court.
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