The fight over Brett Kavanaugh’s White House records is producing one of the most contentious Supreme Court confirmation hearings in a generation. Thursday’s session began with Republican senators warning their Democratic counterparts that they could be expelled from the Senate for releasing documents marked “committee classified.” Their Democratic colleagues welcomed the confrontation.
“Bring it,” Democrat Cory Booker told Republican John Cornyn after one such reproach. Booker then spent the day releasing small batches of the 189,000 pages of Kavanaugh documents only available to senators. Republicans claimed the releases were a political stunt, and that the committee had already approved their publication overnight. Since the Senate hasn’t expelled a member since the Civil War, the entire clash had an air of theatricality.
Democratic senators said the documents shined new light on Kavanaugh’s views and actions, especially on abortion and the heated judicial wars of the George W. Bush administration. While the documents did offer some new insights, some of the Democrats’ claims and insinuations missed the mark. What they did prove is how badly the Republicans have mishandled Kavanaugh’s records. They also raise new questions about the rest of the documents that haven’t been made available.
The most widely discussed document was published on Thursday morning by The New York Times just as Kavanaugh’s hearing was about to begin. In an email from 2003, he weighed in on a draft op-ed written by supporters of Priscilla Owen, one of Bush’s judicial nominees who received fierce opposition from Senate Democrats. The op-ed included a section that downplayed concerns about Owen’s potential views on Roe v. Wade and abortion rights in general.
“First of all, it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land,” the op-ed draft read. “Moreover, federal courts of appeals, which are inferior to the Supreme Court, have no power to overturn Supreme Court precedents like Roe v. Wade.” Kavanaugh took issue with that assertion. “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 [sic] can always overrule its precedent, and three current Justices on the Court would do so,” he wrote in response.
Democrats pounced on the comment as evidence that Kavanaugh does not think that Roe is settled precedent, as he attested multiple times throughout his confirmation hearing. That reading is strained. Kavanaugh’s three assertions are factual; There are more than a few legal scholars who don’t think Roe v. Wade is good or settled precedent; the Supreme Court can always overrule its previous decisions, though it often acts cautiously before doing so; and it’s no secret that three of the sitting justices in 2003—William Rehnquist, Antonin Scalia, and Clarence Thomas—had indicated they would vote to overturn the landmark ruling in the early 1990s.
In the context of editing a colleague’s op-ed, Kavanaugh’s email reads as a description of events, not an expression of his desire to overturn Roe v. Wade. That doesn’t mean he won’t be hostile to abortion rights. As I noted on Wednesday, it’s likely that, at minimum, Kavanaugh will be more favorable towards state laws that restrict abortion than Anthony Kennedy was. Advocacy groups on both sides of the issue are assuming he’ll vote to either curtail abortion rights or overturn Roe entirely, no matter what he says during this week’s confirmation hearings.
Other emails suggest that Kavanaugh wasn’t completely accurate in testimony before the Senate, but they fall short of proof that he lied. During Kavanaugh’s 2004 confirmation hearing, Massachusetts Senator Ted Kennedy questioned him extensively about his role in the nomination of William Pryor to the Eleventh Circuit Court of Appeals. Kennedy and other Democrats took issue with some of Pryor’s remarks, including his assertion that Roe v. Wade was the “worst abomination in the history of constitutional law” and referred to the Supreme Court as “nine octogenarian lawyers.” The Senate narrowly voted to confirm Pryor to the Eleventh Circuit in 2005 after a lengthy impasse.
“You are involved in the vetting process,” Kennedy told Kavanaugh during his confirmation hearing in 2004, referring to Pryor’s nomination. “Whether you did anything at all about it, I gather you did not.” Kavanaugh’s response appeared to be unequivocal. “No, I was not involved in handling his nomination,” he told Kennedy. “I do know that he explained [his remarks] in his [confirmation] hearing, and I will leave it at that.”
Bush-era White House emails released on Thursday suggest that Kavanaugh may have had a deeper involvement than he told the committee. “How did the Pryor interview go?” Kyle Sampson, another staffer in the White House counsel’s office at the time, wrote in a December 2003 email. “Call me,” Kavanaugh cryptically replied. Democratic senators quickly highlighted what they saw as an inconsistency in Kavanaugh’s testimony.
Grassley took a moment between two senators’ questioning to lend the judge a hand. “I have colleagues trying to insinuate that you interviewed Judge Pryor,” he told Kavanaugh. Grassley then suggested that it was more likely that Kavanaugh’s email only meant to suggest that he knew the people who interviewed Pryor. The email doesn’t actually indicate that, but Kavanaugh agreed with it. “That sounds correct,” he replied.
Some emails released on Thursday describe invitations for Kavanaugh to participate in phone calls and meetings related to Pryor’s nomination. It’s unclear whether Kavanaugh took part. Other emails indicate that Kavanaugh took at least some interest in his elevation to the federal bench. In a December 2002 email to a White House colleague, Kavanaugh wrote that “we should perhaps think about recommending Pryor to CA11,” the common legal shorthand for the Eleventh Circuit.
Another big clash came over emails related to the Manny Miranda saga. Miranda, a former Republican aide on the Judiciary Committee in the early 2000s, resigned in 2004 for his role in a plot to hack Democratic senators’ emails and learn more about their strategy for opposing Bush judicial nominees. Some of the stolen contents made their way back to the Bush White House while Kavanaugh worked in the White House counsel’s office. Kavanaugh denied on Wednesday that he knew he was dealing with stolen materials.
On Thursday, Democratic Senator Patrick Leahy posted copies of emails marked “committee confidential” on Twitter that he said called Kavanaugh’s account into question. The March 2003 email from Miranda to Kavanaugh includes multiple pages of talking points. While the email indicates that Kavanaugh received some of the stolen materials, it doesn’t prove that he knew they were stolen. Miranda’s sole reference to “Dem staffers” in the email doesn’t indicate that the emails were hacked.
The biggest question raised by the documents is why many of them were kept from the public in the first place. One heavily redacted chain of emails released on Thursday evening spans from August to September 2001. It appears to focus on a weekend social outing of some kind that took place on a boat. Other than Kavanaugh himself, the participants and the exact circumstances aren’t readily discernible from what’s been redacted. Some of the comments left unredacted, however, are phrased in a manner not usually associated with Supreme Court justices.
“Boys,” one email from an unidentified sender begins, “Although you may be hoping that I’ve lined up a hostess for a rub-n-tug massage session, ‘Su Ching’ actually is the sailboat (a Tayana 55) we’ve got for Friday, Sept. 7 to Sunday, Sept. 9 out of Annapolis.” There are no national-security implications or executive-privilege issues with this comment, which suggests it may have been marked as “committee confidential” because it was somewhat embarrassing.
That raises questions not only about why Republicans kept Thursday’s documents from the public, but also what else is being held back by the committee and by Bush Presidential Library lawyer Bill Burck, who oversees the document review process on the ex-president’s behalf. It’s especially troubling that these documents became public on the last day of questions, which deprives senators of the ability to question Kavanaugh about them and denies Kavanaugh the opportunity to clarify them.
The prospective justice is familiar with the need for keeping things under wraps. In the “Su Ching” email chain, Kavanaugh thanks an unidentified acquaintance for a great time over the weekend. “Apologies to all for missing Friday (good excuse), arriving late Saturday (weak excuse), and growing aggressive after blowing still another game of dice (don’t recall),” he wrote in jest. “Reminders to everyone to be very, very vigilant w/r/t confidentiality on all issues and all fronts, including with spouses.”