Kavanaugh Emails Give Rise to New Round of Battling in the Senate

WASHINGTON — The disclosure on Thursday of dozens of previously secret emails involving Judge Brett Kavanaugh provoked pointed new questions on the third day of his Supreme Court confirmation hearings, as Democrats pressed him to explain fresh disclosures on abortion rights, affirmative action and previous testimony to the Senate.

Much of the tumult surrounded one quotation from an email that Kavanaugh wrote as a lawyer in George W. Bush’s White House concerning the landmark abortion decision Roe v. Wade: “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 Democrats and abortion rights advocates, that March 2003 statement appeared to contradict testimony from the judge Wednesday, when he said he considered Roe “settled as a precedent of the Supreme Court.”

But Kavanaugh and his Republican backers dismissed its significance. He said he merely was reflecting “an accurate description of all legal scholars,” not expressing his own opinion.

The revelations from the documents, which had been given to the committee with the understanding they would not be publicly released, inflamed tensions between the Judiciary Committee’s Republicans and Democrats. The disclosures did not appear to set off a revolt among the Republicans who control the Senate, meaning that Kavanaugh still appears very likely to be confirmed. Sen. Susan Collins, R-Maine, a key swing vote, indicated to reporters that she accepted Kavanaugh’s explanation of the abortion email.

But the documents hardened partisan lines and once again put the spotlight on Democrats’ bitter complaints that Republicans have kept tens of thousands of pages of Kavanaugh’s White House-era files secret, even from Congress.

Abortion rights proponents pounced on the doubts that Kavanaugh had raised in the confidential writing, portraying him as a potential fifth vote to overturn Roe if he is confirmed and joins the Supreme Court’s now-four-member conservative bloc.

“Brett Kavanaugh’s emails are rock solid evidence that he has been hiding his true beliefs and if he is given a lifetime seat on the Supreme Court, he will gut Roe v. Wade, criminalize abortion, and punish women,” NARAL Pro-Choice America, the abortion rights lobby, said in a statement.

The email stemmed from an opinion article drafted by the Bush White House to be run under the names of female abortion opponents backing Bush’s judicial nominees. The opinion article 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, as a White House aide, objected to that characterization and asked for its removal from the draft opinion article. The email prompted a grilling from Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee and one of the Senate’s fiercest defenders of Roe. She pointedly insisted that Kavanaugh give her a “yes or no” answer to the question of whether Roe was “correct law.” He would not say.

“I’m always concerned about accuracy, and I thought it was not an accurate description of all legal scholars,” he said, referring to the email. Roe, he went on, is “an important precedent. It has been reaffirmed many times.”

Even outside the hearing room, Kavanaugh’s views on abortion stirred dissent. Adding to the concerns of abortion rights advocates was a reference he made to contraceptives as “abortion-inducing drugs.” He was answering a question from Sen. Ted Cruz, R-Texas, about his dissent in a case involving Priests for Life, a religious organization that objected to a regulation under the Affordable Care Act requiring many employers to provide free insurance coverage for contraception to their female workers.

The group had objected to an accommodation offered by the Obama administration that allowed it to obtain a waiver by completing a form.

“They said filling out the form would make them complicit in the provision of the abortion inducing drugs that they were as a religious matter objecting to,” Kavanaugh testified.

Some religious organizations regard any form of birth control as an abortifacient. But Kavanaugh’s use of the term “abortion-inducing drugs” set off alarm bells among abortion rights advocates and spawned a hashtag, #abortioninducingdrugs, on Twitter.

“BIG FLAG,” Erica Sackin, director of political communications for Planned Parenthood of America, wrote on Twitter. “#Kavanaugh just called birth control ‘abortion inducing drugs.'”

The late emergence of that and other emails, and confusion about what was formally public and what remained technically confidential, added to the tensions. An unknown person provided many of the secret documents late Wednesday to The New York Times, which began publishing them Thursday morning.

Several Democratic senators, including Sen. Cory Booker, D-N.J., began posting the previously confidential documents — including some of the same ones published by The Times, as well as many others — later Thursday morning after receiving clearance to do so from William Burck, a lawyer working for former President George W. Bush who had provided the documents to the committee on the condition they be kept confidential.

Confusion over the timing of the releases led Sen. John Cornyn, R-Texas, to accuse Booker of breaking committee rules. Booker had referred to several confidential documents late Wednesday, and declared Thursday morning that he had decided to violate the rules and disclose documents — posting a set of emails in which Kavanaugh discussed issues like affirmative action and racial profiling.

Threatened with expulsion from the Senate, Booker declared, “Bring it.”

In one document, Kavanaugh expressed a critical view about some Department of Transportation affirmative action regulations.

“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” Kavanaugh wrote, adding he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”

When Booker said he was releasing the documents, Cornyn accused him of grandstanding because he was “running for president.” But Booker dared Cornyn to begin the process of trying to bring charges of violating the rules against him.

“I could not understand — and I violated this rule knowingly — why these issues should be withheld from the public,” Booker said. “This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment.”

However, Burck later said in a statement that he had already granted permission to Booker to release the specific documents he put out.

“We cleared the documents last night shortly after Senator Booker’s staff asked us to,” Burck said. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public.”

Still, Kristin Lynch, a spokeswoman for Booker, insisted he had read from confidential documents Wednesday night and continued to release confidential documents Thursday.

“Last night, he was admonished by Republicans for breaking the rules when he read from committee confidential documents,” she said. “Cory and Senate Democrats were able to shame the committee into agreeing to make last night’s documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today.” Another group of newly available documents fueled questioning by Sen. Patrick Leahy, D-Vt., about Kavanaugh’s work, from 2001 to 2003, with Manuel Miranda, a former Senate Republican aide who was forced to resign after he and another Republican Senate staff member infiltrated confidential files of Senate Judiciary Committee Democrats, including Leahy. The Republican aides clandestinely monitored files describing which of Bush’s judicial nominees the Democrats would try to block and with what tactics, copying thousands of them and passing some on to the news media.

During his confirmation hearings to be an appeals court judge in 2004 and 2006, Kavanaugh had denied any knowledge of what Miranda had been doing, and he insisted again this week that nothing ever raised “red flags” with him about the information Miranda was providing to him. But Leahy put out formerly secret emails about the two aides’ interactions.

The newly unmasked communications included a March 2003 email from Miranda to Kavanaugh that included several pages of Democratic talking points, marked “not for distribution.” Another email to Kavanaugh came from a Republican Senate staff member who used the subject line “spying” and referred to “a mole for us on the left.”

Still another email, released Thursday night by Booker, shows Miranda proposing a lunch meeting in July 2002 at a deli in downtown Washington with Kavanaugh and a Justice Department official. There, he said, he could “provide useful info to map out Biden and Feinstein,” a reference to Sen. Diane Feinstein, D-Calif., and Joe Biden, a senator at the time.

Kavanaugh reiterated that he had no knowledge that Miranda had infiltrated Democratic files, saying he most likely assumed that the Republican staff was getting information from friends who were Democratic staff members and nothing had raised red flags at the time.

Leahy scoffed, saying, “I was born at night but not last night.” He added, “If I had something that somebody said, ‘we have stolen this’ or ‘don’t tell anybody we have this,’ I think it would raise some red flags.”

Leahy also pressed him about more than 100,000 documents from his period as a Bush White House lawyer that the Senate has not been permitted to see, even on a confidential basis, as the White House cited executive privilege. Leahy asked whether Kavanaugh could confirm that none of those contain more such emails from Miranda.

“Senator, I am not involved in the documents process,” Kavanaugh said. “I don’t know what’s in them.”

After a pause, Leahy said, “Well, that is convenient. But we don’t know what’s in them either because we’ve never had so much withheld before.”