News Outlets Claim That Leaked Kavanaugh Emails Contradict His Testimony – Legal Experts Disagree
News articles claimed that a 2003 email by Supreme Court nominee Brett Kavanaugh that was anonymously leaked to the press contradicts his congressional testimony that Roe v. Wade is “settled as precedent.”
“Newly released Brett Kavanaugh emails contradict testimony that he believes Roe v. Wade is ‘settled law,'” a New York Daily News headline read.
“Leaked email contradicts Kavanaugh’s statement that ‘Roe v. Wade’ is precedent,” said a Daily Dot headline.
“The revelation that Kavanaugh has privately stated views that Roe v. Wade is not settled law, contradicting his statements to the committee this week, has prompted reproductive rights groups to denounce the nominee,” a HuffPost article read.
“Brett Kavanaugh wrote that he wasn’t sure whether the landmark 1973 Roe v. Wade abortion ruling was settled law – a view he’s contradicted during his Supreme Court confirmation hearing this week,” read a PBS NewsHour piece.
Legal experts say Kavanaugh’s 2003 email did not contradict his testimony because he expressed the views of other people, not necessarily his own. He sent the email speaking as a lawyer for the White House, while his testimony was in the context of how he’d view precedent as a judge.
Democrats on the Senate Judiciary Committee questioned Kavanaugh at his confirmation hearing last week about his views on abortion cases. Sen. Dianne Feinstein asked if he thinks Roe v. Wade, the landmark Supreme Court case that legalized abortion nationwide, is correct and settled law. Sen. Kamala Harris asked if he thinks that “the right to privacy protects a woman’s choice to terminate a pregnancy.”
Kavanaugh addressed the questions without stating whether he agreed with the decision in Roe or how he would rule in a case challenging the decision. He said that Roe is “settled as a precedent of the Supreme Court and entitled to respect under principles of stare decisis” and is “important precedent to the Supreme Court.”
Republican Sen. Susan Collins also said in August that Kavanaugh told her he agreed with Chief Justice John Roberts, who said at his Supreme Court confirmation hearing in 2005 that Roe is “settled law.”
The legal doctrine of stare decisis means that courts should respect legal precedent – previously decided cases – and rule on similar cases with the same reasoning. That principle makes it difficult to overturn well-established cases like Roe, but abortion rights groups worry that Kavanaugh will still rule to overturn Roe if he is confirmed.
On the third day of the hearing, The New York Times published “committee confidential” emails from Kavanaugh’s time as a White House lawyer for President George W. Bush in 2003 that discussed a draft op-ed in support of Judge Priscilla Owen’s nomination to the U.S. Court of Appeals. “It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land,” the draft read.
Kavanaugh critiqued the phrasing. “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,” he wrote in a 2003 email.
Many legal experts told The Daily Caller News Foundation that Kavanaugh’s 2003 email did not contradict his testimony before the Senate Judiciary Committee.
“The fact that some legal scholars think that Roe is not settled law at the level of the Supreme Court is not necessarily inconsistent with the later assertion that, as a nominee, Kavanaugh thinks Roe is settled precedent,” Robert Nagel, professor emeritus at the University of Colorado Law School, told TheDCNF in an email. “In the first instance he is describing the opinion of others, while in the second he is indicating his own present views as they might signal how he would likely assess the issue as a justice on the Court.”
Collins’ spokeswoman also pointed out that Kavanaugh was relaying the opinions of the wider legal community rather than his own. “As Judge Kavanaugh clarified at this morning’s hearing, he was not expressing his personal views,” she said in a statement on Sept. 6.
Some professors thought that even though Kavanaugh was explaining the views of other legal thinkers, his email still raises questions about his own beliefs.
David Cohen, a law professor at Drexel University, said that while Kavanaugh’s statements in the hearings did not “directly contradict” his email, his testimony was “highly misleading in that he steadfastly refused to say anything like what he said in 2003” – that even settled law can be overturned by the Supreme Court. And Keith Werhan, a law professor at Tulane University, thought that the 2003 email gave away Kavanaugh’s personal views rather than the views of others. “The fact that Judge Kavanaugh wanted the entire statement deleted suggests to me that he was not comfortable with the statement that Roe was settled law,” Werhan said.
Other legal experts stressed that the emails do not contradict his testimony not only because he was relaying the views of others, but also because Kavanaugh worked in a different capacity when he sent the email as a White House lawyer than when he testified as a judge.
“As a judge, his position on precedent is understandably different from any opinions he may have had as an administration lawyer working for the Bush White House,” Stephen Griffin, a law professor at Tulane University, told TheDCNF in an email. “He could entertain all sorts of opinions as an administration lawyer that he could not as a judge.”
As a lawyer, Kavanaugh’s role was to protect his client and advance the White House’s views. But Kavanaugh had a duty as a judge to respect and apply court precedent.
Jamil Jaffer, an adjunct professor of law at the Antonin Scalia Law School at George Mason University and director of the national security law and policy program, also noted that Kavanaugh had different roles when he made the statements in the email and before the committee. “Somebody simplistic might say there’s a difference there. But to do that would be to ignore the relevant context. And here, the context matters very much,” he told TheDCNF.
Jaffer explained that judges often take a different view of the law from the bench than they otherwise would, and that could apply to Kavanaugh’s transition from administration lawyer to judge. “He had a different role when he was in the government and a different role now on the bench. I don’t think there’s any discontinuity between the two,” Jaffer said.
Kavanaugh’s statements at the hearing do not guarantee that Roe will stay intact.
“Saying Roe is settled as a precedent does not mean that Kavanaugh would not or could not eviscerate or overturn Roe – it is simply a statement of fact that Roe is a settled precedent of the Supreme Court,” Maya Manian, a law professor at the University of San Francisco, told TheDCNF in an email. She noted that the current court has been willing to overturn settled precedent.
PBS NewsHour updated its article Monday and removed the assertion that the leaked emails contradict Kavanaugh’s testimony after an inquiry from TheDCNF.
The Daily Dot, New York Daily News and HuffPost did not respond to requests for comment.
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