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Kavanaugh Denies Calling Roe v. Wade Unsettled in 2003 Email

Nominee says he was warning against blanket statement for all scholars

Sen. Dianne Feinstein and Sen. Kamala Harris at the Capitol. (Bill Clark/CQ Roll Call File Photo)
Sen. Dianne Feinstein and Sen. Kamala Harris at the Capitol. (Bill Clark/CQ Roll Call File Photo)

Supreme Court nominee Brett Kavanaugh on Thursday again called landmark abortion case Roe v. Wade an “important precedent” and told senators he was not taking a stance on whether it is a settled legal matter in a 2003 email.

At the time, Kavanaugh commented on a draft opinion piece from supporters of a conservative federal court nominee. That draft op-ed stated “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

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But Kavanaugh wanted to nix the line, writing this in an email obtained first by The New York Times: “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.”

On Thursday, he told Judiciary ranking member Dianne Feinstein of California that he was merely cautioning Bush White House colleagues to avoid grouping “all” legal scholars into one school of thought about Roe.

“The broader point was simply that that was overstating something about legal scholars,” he told Feinstein. “I thought that was not quite accurate of all legal scholars, because that referred to all.”

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And when she pressed him about his stance on Roe, he repeated a line he uttered multiple times the previous day, calling the case “an important precedent of the Supreme Court.” But, like when asked about other potential matters that might become a case before the high court, he declined to say how he would rule on overturning it, if he is confirmed.

The exchange on Roe came after the third day of the confirmation hearing began with Sen. Corey Booker, D-N.J., and Senate Majority Whip John Cornyn, R-Texas, battling over rules and the release of information from his time in the George W. Bush White House. At one point, Booker challenged Cornyn to “bring the charges.

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