Democrats hoping to block Brett Kavanaugh’s Supreme Court confirmation pivoted Thursday to a deeply contentious issue after disclosure of an email he once wrote suggesting the high court’s landmark Roe ruling wasn’t universally considered settled law. But their long-shot chances of defeating him appeared to be fading.
In the email in question, Kavanaugh was reviewing and commenting on a potential op-ed article in support of two judicial nominees while he was working at the George W. Bush White House in 2003. The document had been among many held by the Senate Judiciary Committee as confidential, over the objections of Democrats, who have argued throughout this week’s hearing that Republicans have shielded important papers about President Donald Trump’s nominee.
“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 wrote, referring to justices at the time, in an email to a Republican Senate aide. The document was partially redacted.
The Trump White House quickly dashed off a memo saying Kavanaugh was merely discussing what “legal scholars” thought, not himself.
Asked about it by Republican Sen. Orrin Hatch of Utah, Kavanaugh said the same, that he was noting “what legal scholars might say” and offered his comment on the proposed article because he’s “always concerned with accuracy.”
The committee’s top Democrat, Dianne Feinstein of California, who previously discussed her own memories of an era before the 1973 law pressed Kavanaugh to explain himself. Kavanaugh reiterated his previous testimony that “Roe v. Wade is an important precedent of the Supreme Court.”
So far, the 53-year-old judge has been able to stay on track toward confirmation in the Republican-held Senate, avoiding major pitfalls in hours of questioning before the Judiciary Committee. After a 12-hour session Wednesday and more questioning Thursday, he did not seem to have changed minds on the committee, which is basically split along partisan lines. But Republicans hold a slight majority there as in the full Senate.
Much of the debate has focused more on the disclosure of documents than on Kavanaugh’s record.
When Democrat Cory Booker of New Jersey said Thursday he was willing to risk fallout over releasing confidential documents about Kavanaugh’s views on race, Republican John Cornyn of Texas warned him that senators could be expelled for violating confidentially rules. Democrats and Booker responded, “Bring it on.”
In fact, some of the documents the Democrats wanted released had been put out hours earlier, in a pre-dawn disclosure approved by Bill Burck, the GOP attorney who serves as presidential records lawyer for former President George W. Bush.
“We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly,” Burck said by email. Booker had sought release late Wednesday, after questioning Kavanaugh on race and drawing a rebuke from his colleagues for disclosing the confidential documents. The documents were made available after 3 a.m. Thursday, a few hours before the committee was gaveled into session.
Booker’s spokeswoman said that by raising the issue publicly the senator had been able to “shame the committee into agreeing” to release the pages to the public.
The document battle stems from Kavanaugh’s unusually long paper trail from his years in the Bush White House. The panel’s process resulted in hundreds of thousands of pages of Kavanaugh’s documents being withheld as confidential or kept from release under presidential privilege by the Trump White House.
Committee Chairman Chuck Grassley, R-Iowa, who released more documents Thursday, stood by his handling of the situation.
“My process was fair,” he declared as he opened the session.
Democrats are concerned that Kavanaugh will push the court to the right and that he will side with Trump in cases stemming from special counsel Robert Mueller’s investigation of Russian interference in the 2016 election and possible ties to the Trump campaign.
In his days before the committee, Kavanaugh has declined to answer questions about how he would handle investigations of the executive branch and whether he would step aside if cases involving Trump under Mueller’s probe end up at the court. He also has refused to provide direct answers to Democrats who wanted him to say whether there are limits on a president’s power to issue pardons, including to himself or in exchange for a bribe. He also would not say whether he believes a president can be subpoenaed to testify.
Trump says he’s pleased with his nominee’s performance, and Republicans are united behind him.
Late Wednesday evening, Kavanaugh seemed to stumble at first when questioned by Democrat Kamala Harris of California about whom he might have spoken with at a law firm concerning the investigation into Russian election meddling. The firm in question was founded by Marc Kasowitz, who has represented Trump.
Kavanaugh eventually said he couldn’t think of any such conversations but would need to see a list of the firm’s lawyers.
Asked about it again Thursday by Hatch, Kavanaugh did not fully clear up the situation. “I don’t recall any inappropriate conversations about the investigation,” he said.
Protesters have repeatedly tried to interrupt the hearing, which has carried strong political overtones ahead of the November congressional elections.
Senate Majority Leader Mitch McConnell dismissed the protesters’ “unhinged antics” as powerless to stop Trump’s choice. “There’s no hecklers’ veto,” he said.
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.