Newly Revealed Emails Raise Fresh Objections to Kavanaugh Confirmation

WASHINGTON — The disclosure on Thursday of dozens of previously secret emails involving Judge Brett M. 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 Judge 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 on Wednesday, when he said he considered Roe “settled as a precedent of the Supreme Court.”

[Read the email.]

But Judge 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 that 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 Judge Kavanaugh still appears very likely to be confirmed. Senator Susan Collins, Republican of Maine and a key swing vote, indicated to reporters that she accepted Judge 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 Judge Kavanaugh’s White House-era files secret, even from Congress.

Abortion rights proponents pounced on the doubts that Judge 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 Mr. Bush’s judicial nominees. The opinion article said that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Judge 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 Senator 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 Judge 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.”

Judge Kavanaugh created a stir outside the hearing room on Thursday when he referred to contraceptives as “abortion-inducing drugs,” in describing his dissent in a case involving a religious group, Priests for Life, that objected to the Affordable Care Act’s requirement that requires many employers to cover contraceptives.

The group also 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,” Judge Kavanaugh testified.

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

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 on Wednesday to The New York Times, which began publishing them Thursday morning.

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

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

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

In one document, Judge 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,” Mr. Kavanaugh wrote, adding that he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”

[Read the email.]

When Mr. Booker said he was releasing the documents, Mr. Cornyn accused him of grandstanding because he was “running for president.” But Mr. Booker dared Mr. 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,” Mr. Booker said. “This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment.”

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

“We cleared the documents last night shortly after Senator Booker’s staff asked us to,” Mr. 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 Mr. Booker, insisted that he had read from confidential documents on Wednesday night and continued to release confidential documents on 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 Senator Patrick J. Leahy, Democrat of Vermont, about Judge 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 Mr. Leahy. The Republican aides clandestinely monitored files describing which of Mr. 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, Judge Kavanaugh had denied any knowledge of what Mr. Miranda had been doing, and he insisted again this week that nothing ever raised “red flags” with him about the information that Mr. Miranda was providing to him. But Mr. Leahy put out formerly secret emails about the two aides’ interactions.

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

Judge Kavanaugh reiterated that he had no knowledge that Mr. 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.

Mr. 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.”

Mr. 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 has cited executive privilege. Mr. Leahy asked whether Judge Kavanaugh could confirm that none of those contain more such emails from Mr. Miranda.

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

After a pause, Mr. 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.”

Catie Edmondson, Nicholas Fandos, and Adam Liptak contributed reporting.

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