WASHINGTON — Democrats sought to shed a new light on Supreme Court nominee Brett Kavanaugh on Thursday with unsealed documents that included an email that showed he once challenged the description of the Roe v. Wade decision as “settled law.”
Questions on abortion rights and the power of presidents, including President Donald Trump, to fire special prosecutors dominated much of Kavanaugh’s second day of questioning, in which he responded with carefully prepared responses or refusals to answer.
With the release of previously secret emails and other documents, Democrats raised questions about Kavanaugh’s views on race and affirmative action and his credibility in his earlier hearings in 2004 and 2006 for his current judgeship on the influential District of Columbia Circuit Court.
But Kavanaugh sought to allay those concerns by saying he relied on Supreme Court precedent in his rulings and had spoken truthfully in his earlier hearings — and again avoided major missteps and appeared to be on track to winning approval from the Judiciary Committee.
Republicans repeatedly praised the judge for his demeanor and views and welcomed Kavanaugh’s two daughters and their basketball teammates, who sat behind him when they arrived midafternoon after school.
Both sides pressed Kavanaugh for his views of the key abortion rulings of Roe and Casey v. Planned Parenthood because his confirmation depends on yes votes by two Republican senators who support abortion rights, Susan Collins of Maine and Lisa Murkowski of Alaska.
Sen. Dianne Feinstein (D-Calif.) read the March 2003 email that Kavanaugh wrote as a lawyer in the Bush White House to a Republican Senate aide and said it presented a different view from his statement to the committee Wednesday that Roe v. Wade is a “settled precedent.”
Kavanaugh advised the aide to delete from a draft op-ed written to back anti-abortion judicial nominees a line that said 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.”
And he added, “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.”
To Feinstein, Kavanaugh said, “I think my comment in the email was that might be overstating the position of legal scholars.” He added, “To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It's been reaffirmed many times.”
When Feinstein asked him if Roe is “correct law in your view,” he declined to answer.
Sen. Dick Durbin (D-Ill.) told Kavanaugh that his embrace of former Justice Antonin Scalia’s dissent in a case about the independent counsel raises concerns and Sen. Chris Coons (D-Del.) prodded him on his view that a president could fire a special counsel at will.
“Given your views in Morrison v. Olson, we are obviously worried that you will feel bound by this dissent by Antonin Scalia if President Trump decides to attempt to fire the Special Counsel Bob Mueller,” Durbin said.
The emails emerged from a batch that had been designated as “committee confidential” — available only to senators — that stirred an early storm as the hearing reconvened as Sen. Cory Booker (D-N.J.) said he would release some of those emails anyway.
But Sen. Charles Grassley (R-Iowa) said those secret emails would be cleared by the lawyers for former President George W. Bush who had deemed them confidential and made public.
Sen. Patrick Leahy (D-Vt.) read emails from a former Senate GOP staffer that suggested he had shared materials on judicial nomination strategy he stole from Democrats’ computers with Kavanaugh when Kavanaugh was vetting and preparing judge candidates for the White House in 2003.
One email was marked confidential and another had a subject line of “spying,” Leahy said, asking if that didn’t raise a red flag. Kavanaugh said it was common for Senate staffers to talk to each other, adding “that wouldn’t raise anything for me.”
Kavanaugh also faced questions about rulings and emails in which he spoke of working toward a “race neutral” law in opposing affirmative action in contracting. He said he was following precedent in the a decision that limited racial set-asides for contracting.
Sen. Orrin Hatch (R-Utah) gave Kavanaugh a chance to clarify his answers to questions from Sen. Kamala Harris (D-Calif.) late Wednesday about whether he had discussed Mueller’s Russia probe with anyone at the Kasowitz law firm, founded by Trump personal lawyer Marc Kasowitz. She said she based it on an undisclosed email.
“I don’t recall any conversations of that kind,” Kavanaugh told Hatch. He said he did not know who worked at the firm and had not had any “inappropriate conversations” or commented on his views that could make their way to the Supreme Court.