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During his tenure as a White House lawyer under George W. Bush in March 2003, Supreme Court nominee Brett Kavanaugh questioned whether Roe v. Wade is “settled law,” according to one of his emails cited Thursday by The New York Times. At the time, Kavanaugh was reportedly evaluating a draft opinion piece that included the line “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” In the cited email, Kavanaugh suggested deleting the line, writing that “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.” The Times notes, however, that this email does not reveal what Kavanaugh personally believes regarding whether Roe is, in fact, “settled.”
The email is reportedly part of the thousands of documents labeled “committee confidential” (that is, not available to the public). The Times claims they have received “several” of those documents from an unidentified source. Other leaked documents include comments on affirmative action, and an argument against designating native Hawaiians as a “protected group” like Native American tribes. In his comments on affirmative action, Kavanaugh criticized some Department of Transportation programs, writing that “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.”