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Roe v. Wade in Danger: Released Docs Reveal Kavanaugh Thinks Abortion Decision Is Not “Settled Law”

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Supreme Court nominee Brett Kavanaugh’s confirmation hearing took a series of dramatic turns Thursday, as Democratic senators began releasing confidential documents from Kavanaugh’s work at the George W. Bush White House. The New York Times also broke a major story Thursday morning revealing that Kavanaugh wrote as a White House attorney in 2003 that he did not deem the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land.” He wrote, “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.” These revelations come as the Trump administration withholds more than 100,000 pages of Kavanaugh’s records on the basis of presidential privilege. We speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

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Video squareStorySep 17, 2018Will Kavanaugh Overturn Roe v. Wade? SCOTUS Nominee’s Confirmation Is About “Life and Death for Women”
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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Supreme Court justice nominee Brett Kavanaugh’s confirmation hearing took a dramatic turn Thursday, when Democratic senators began releasing confidential documents from Kavanaugh’s work at the George W. Bush White House. The move came in response to the Trump administration withholding more than 100,000 pages of Kavanaugh’s records on the basis of presidential privilege.

The Democrats’ move came shortly after The New York Times broke a major story Thursday morning revealing Kavanaugh, as a White House attorney, wrote in 2003 he did not deem the Supreme Court’s landmark Roe v. Wade abortion rights decision to be settled law of the land. Kavanaugh wrote, quote, “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 said. California Senator Dianne Feinstein questioning Kavanaugh Thursday about the emailing.

SEN. DIANNE FEINSTEIN: We have an email that was previously marked confidential but is now public and shows that you asked about making edits to an op-ed that read the following, and I quote: “First of all, it is widely understood, accepted by legal scholars across the board, that Roe v. Wade and it progeny are the settled law of the land,” end-quote. You responded by saying, and I quote, “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.” This has been viewed as you saying that you don’t think Roe is settled.

AMY GOODMAN: Judge Brett Kavanaugh dismissed the significance of his 2003 email.

JUDGE BRETT KAVANAUGH: The broader point was simply that I think it was overstating something about legal scholars. And I’m always concerned with accuracy, and I thought that was not quite accurate description of legal—all legal scholars, because it referred to all.

AMY GOODMAN: During Thursday’s hearing, Judge Kavanaugh also alarmed many reproductive rights activists by describing contraception as “abortion-inducing drugs.” He made the comment in a question about his 2015 dissent in the Priests for Life v. HHS case.

JUDGE BRETT KAVANAUGH: That was a group that was being forced to provide a certain kind of health coverage, over their religious objection, to their employees. And under the Religious Freedom Restoration Act, the question was, first: Was this a substantial burden on the religious exercise? And it seemed to me quite clearly it was. It was a technical matter of filling out a form in that case, but 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, objected to.

AMY GOODMAN: In another dramatic moment from Thursday’s hearing, Democratic Senator Cory Booker released to the public a document that was previously considered committee confidential. The document described Kavanaugh’s views as a White House aide under George W. Bush on the use of racial profiling in the aftermath of the September 11th, 2001, attacks on the U.S. This is an exchange between Booker, Committee Chair Chuck Grassley and Texas Senator John Cornyn.

SEN. CORY BOOKER: I knowingly violated the rules that were put forth, and I’m told that the committee-confidential rules have knowing consequences. And so, sir, I come from a long line, as all of us do as Americans, and understand what that kind of civil disobedience is, and I understand the consequences. So I am right now, before your—before your process is finished, I am going to release the email about racial profiling. And I understand that the penalty comes with potential ousting from the Senate. And if Senator Cornyn believes that I have violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now. And I’m releasing it to expose that, number one, the emails that are being withheld from the public have nothing to do with national security.

SEN. CHUCK GRASSLEY: Can I ask you—can I ask you—

SEN. CORY BOOKER: And I want—

SEN. CHUCK GRASSLEY: Can I ask you how long you’re going to say the same thing three or four times?

SEN. CORY BOOKER: No, sir, I’m saying right now that I’m releasing—I’m releasing committee-confidential documents.

SEN. JOHN CORNYN: No senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification. That is irresponsible and conduct unbecoming a senator.

AMY GOODMAN: In the document mentioned by Senator Booker, Judge Kavanaugh said that although he favored race-neutral policies in policing, there was an “interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented,” unquote.

Well, for more, we’re joined by Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Last week, the organization released a damning report on Kavanaugh’s record on cases concerning civil rights, criminal justice, voting rights, fair housing, education, reproductive rights, environmental justice and access to justice overall, and also issued a statement opposing Kavanaugh’s nomination to the Supreme Court.

Well, Kristen, we spoke to you right before the hearings began. Today is supposedly the last day of these hearings. Talk about the significance of what happened yesterday with Senator Booker saying he was willing to risk expulsion from the Senate to release these documents. Kristen, I don’t know if you heard that question. It seems that our guest has just lost the audio sound as she sits in Washington. But, Kristen Clarke, let me go to—I think you’re there now. I was asking the significance of Senator Booker of New Jersey saying he would risk expulsion to release these documents that were being held back.

KRISTEN CLARKE: This is, by no small stretch, one of the most covert and nontransparent Supreme Court hearings that we have seen in modern time. It’s really important to reflect back on what happened in prior nominations with respect to the nominations of Justice Kagan, Sotomayor, Alito, Roberts. The standard has always been 100 percent transparency. On both sides of the aisle, there has been great insistence on seeing the records and documents that really explain who those nominees are, before the Senate would move forward. And it is astounding to see what is happening now with respect to Brett Kavanaugh.

The rules of the game have changed, and the Senate is essentially being forced to proceed despite the fact that more than 90 percent of Mr. Kavanaugh’s records have not been disclosed. And to add insult on top of injury, of the small number of documents that are available, we see both this administration, with the acquiescence of Chairman Grassley, slapping privilege claims and confidentiality labels onto documents that make it even more difficult for the senators to do their job.

I am really pleased that Senators Booker and Hirono and others pushed back yesterday. It is virtually impossible to question a nominee about their views when you have a committee-confidential label slapped onto a document that prevents you from airing the document with the public, from giving it to the nominee so that nominee can see what you are questioning him on.

You know, yesterday, I thought, was a transformative moment in these hearings, because this is not business as usual. We have not seen a process where the administration has deeply entangled itself in how the Senate Judiciary Committee goes about its gravely important task of vetting this nominee, and we’re seeing the sweeping use of executive privilege, and, on top of that, this committee-confidential claim labeled on documents that are not controversial at all, really because Chairman Grassley and his colleagues want to railroad Mr. Kavanaugh onto the court. They want to avoid a discussion about his real views on issues like racial profiling and Roe v. Wade and not complicate his path to the court. At the end of the day—

AMY GOODMAN: Well, explain the—explain the significance of what the document showed from 2003, Kavanaugh’s own email as a White House counsel, talking about Roe v. Wade not being settled law, and also in the hearing calling contraceptives “abortion-inducing drugs.”

KRISTEN CLARKE: These documents are game changers, but we have to remember that more than 90 percent of Mr. Kavanaugh’s record has been kept in the dark. Had we had these documents from Tuesday—and I’ve been in that hearing room every single day—I think the tenor of these hearings would have been very different. I think senators on both sides of the aisle would have been in a position to really probe and figure out whether Mr. Kavanaugh is prepared to adhere to and uphold the Supreme Court’s precedent when it comes to Roe v. Wade.

That email really compounds some of the other evidence that has come forth—the Garza case, for example, in which Mr. Kavanaugh seemed to go to great lengths to deny an undocumented teen access to an abortion, another case where he allowed employers to invoke religious reasons as grounds to deny employees access to contraceptive care and reproductive access. When you put all of this evidence together, it really starts to paint a picture of who Mr. Kavanaugh is—a picture that we could complete if we had the other 90 percent of his record that the senators have been denied access to during this process.

AMY GOODMAN: I want to go to Senator Kamala Harris of California questioning Kavanaugh on Wednesday about whether he discussed the Mueller investigation with anyone at Kasowitz Benson Torres law firm—Marc Kasowitz, the personal attorney for Donald Trump.

SEN. KAMALA HARRIS: Did you talk with anyone at Kasowitz Benson and Torres?

JUDGE BRETT KAVANAUGH: You asked me that. I need to know who works there.

SEN. KAMALA HARRIS: I think you can answer the question without me giving you a list of all employees at that law firm.

JUDGE BRETT KAVANAUGH: Well, actually, I can’t. I—

SEN. KAMALA HARRIS: Why not?

JUDGE BRETT KAVANAUGH: Because I don’t know who works there.

SEN. KAMALA HARRIS: So, that’s the only way you would know who you spoke with? I want to understand your response to my question, because it’s a very direct one. Did you speak with anyone at that law firm about the Mueller investigation? It’s a very direct question.

JUDGE BRETT KAVANAUGH: Right. I’d be—I’d be surprised, but I don’t know anyone—I don’t know if the—I don’t know everyone who works at that law firm, so I just want to be careful, because your question was “and/or,” so I want to be very literal.

SEN. KAMALA HARRIS: That’s fine. I’ll ask a more direct question if that’s helpful to you. Did you speak with anyone at that law firm about Bob Mueller’s investigation?

JUDGE BRETT KAVANAUGH: I’m not remembering anything like that, but I want to know a roster of people, and I want to know more.

SEN. KAMALA HARRIS: So you’re not denying that you spoke with any—

JUDGE BRETT KAVANAUGH: Well, I said I don’t remember anything like that.

AMY GOODMAN: So that was Judge Kavanaugh Wednesday. Senator Harris on Thursday again asked Kavanaugh if he had discussed the Mueller investigation with anyone at Kasowitz Benson Torres law firm.

[no audio]

AMY GOODMAN: Kristen Clarke, let me go to you on this. What is the significance here? What is the point that Senator Harris is making?

KRISTEN CLARKE: Look, we need justices on our nation’s highest court who will be truthful, of the highest integrity, justices where there is no question about their veracity and their ability to always be forthcoming and honest. And I must say that it was painful listening to Senator Harris ask very clear questions about Kavanaugh and his contacts with lawyers from that firm. At every turn, he just seemed to be incredibly evasive. Now, I think it’s important—

AMY GOODMAN: Well, let’s go to another turn of Kavanaugh on Thursday.

SEN. KAMALA HARRIS: Were you a party to a conversation that occurred regarding special counsel Mueller’s investigation? And a simple yes or no would suffice.

JUDGE BRETT KAVANAUGH: About his investigation? And are you referring to a specific person?

SEN. KAMALA HARRIS: I’m referring to a specific subject, and the specific person I’m referring to is you.

JUDGE BRETT KAVANAUGH: Now, the—who was the conversation with? You said you had information.

SEN. KAMALA HARRIS: That is not the subject of the question, sir.

JUDGE BRETT KAVANAUGH: OK. Well, the—

SEN. KAMALA HARRIS: The subject of the question is you and whether you were part of a conversation regarding special counsel Mueller’s investigation.

JUDGE BRETT KAVANAUGH: The answer is no.

SEN. KAMALA HARRIS: Thank you.

AMY GOODMAN: So, Kristen Clarke, very quickly, if you can explain why she is asking this question? This whole issue of—Kavanaugh was not on the Federalist Society list of judges to choose from for the Supreme Court, as was Gorsuch, and Trump made very clear, “This is the only list I will use.” And this issue that came up that Kavanaugh was added after the Mueller investigation began, and was he speaking with President Trump’s personal lawyer, explain.

KRISTEN CLARKE: It raises important questions. I mean, he did not show up on President Trump’s first or second shortlist, in which the president claimed that he was airing to the public all of the people he was considering for this most important position.

And, you know, when we look at the trajectory of what he was doing during that time period, it’s almost as if he were auditioning for the role. I mean, he is out giving speeches to the Federalist Society and the Heritage Foundation and law schools, where he’s airing his views about Justice Rehnquist, who issued the dissenting opinion in Roe v. Wade, and how much he deems him a hero. He’s talking about executive power. It’s almost as if he were auditioning for the president.

And I think that the president selected him, in part—in part—because he finds comfort in Kavanaugh’s current views and outlook on executive power and presidential privilege. And again, you know, Senator Harris really, I think, was getting to his ability to be truthful, which is perhaps the most important characteristic in a Supreme Court justice.

AMY GOODMAN: We just have 30 seconds. What’s happening today? Different people will be testifying for and against him. A Parkland shooting survivor. Condoleezza Rice will
be testifying for him. And do you think this is going to end today?

KRISTEN CLARKE: I think it will end today. Grassley, Chairman Grassley, has been moving at lightning speed to kind of move this forward as quickly as possible. We’ll hear from Cedric Richmond, who’s the head of the Congressional Black Caucus, who will raise questions about Kavanaugh’s civil rights record. The Parkland survivor. We’ll hear from the attorney for the young undocumented teen who was almost denied access to an abortion because of Mr. Kavanaugh. And a number of witnesses who—

AMY GOODMAN: That’s Kristen Clarke. We’ve just lost her on the satellite, but that’s today, what will be taking place at the Kavanaugh confirmation hearings. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. We will link to the report that her group released last week, a damning report on Kavanaugh’s record concerning civil rights, criminal justice, voting rights, fair housing, education, reproductive rights, environmental justice, as well as the statement they issued opposing Judge Kavanaugh’s nomination—confirmation to the Supreme Court.

This is Democracy Now! When we come back, the Trump administration has just said, issued a rule that they will hold children indefinitely, defying the Flores agreement. Over 400 kids, a number of them under 5 years old, are still being detained by the U.S. government, separated at the border. Stay with us.

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