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Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action

Documents provided to The New York Times shed light on the Supreme Court nominee Brett M. Kavanaugh’s years in the George W. Bush administration.

www.nytimes.com

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated 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.”

He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey. The court now has four conservative justices who may be willing to overturn Roe — Justices Thomas and John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.

Still, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.

Separately, Senator Mazie K. Hirono, Democrat of Hawaii, on Thursday published a “committee confidential” email about policies for Native Hawaiians that could be of interest not only to Hawaii’s two Democratic senators but to Senator Lisa Murkowski, Republican of Alaska, a key swing vote who guards the interests of Native Alaskans.

In that email, Mr. Kavanaugh questions Native Hawaiians as a protected group like Indian tribes. He wrote that prepared testimony “needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.”

In another document, Judge Kavanaugh expressed a critical view about some Department of Transportation affirmative action regulations, writing:

“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,” he 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.”

Two Democratic senators unilaterally released several other “committee confidential” emails. Senator Cory Booker, Democrat of New Jersey, posted a series of emails about racial issues that included the affirmative action-related email obtained by The Times.

• What is “originalism?” Why Trump wants an originalist on the Supreme Court, Quartz
• Garrett Epps's Full Constitutional Myth Series on The Atlantic
• The constitution: What the Founders intended, The Week
• The Conservative Plan to Rewrite the Constitution, and Yes, It’s a Thing, Daily Beast

During Thursday’s hearing, [Rep. Zoe] Lofgren repeatedly asked Lloyd if girls and young women in ORR custody have constitutional rights and Lloyd repeatedly sidestepped the question, saying that those coming to the United States have “the potential to become a full U.S. citizen with full rights to all the freedoms we enjoy,” but that it’s “a process … as a person moves through the process, they gain additional rights.”

A closer look at Lloyd’s background indicates that he may not only be unqualified and ill-equipped to lead ORR, but that he was another ideological pick by the Trump administration whose personal beliefs mirror those of anti-choice extremists and men’s rights activists.

He has pushed the anti-choice lie that “contraceptives are the cause of abortion” and that “if we did not have contraceptives in this country, we would not have anywhere near the abortion rate we do now.”

• Before becoming ORR director, Lloyd was an attorney for the Catholic charity Knights of Columbus and served on the board of the Front Royal Pregnancy Center, an anti-choice fake clinic. 
• Lloyd is affiliated with a network of religious organizations, including Human Life International, Veritatis Splendor, and the WitnessWorks Foundation. 
• These organizations are affiliated and encourage members to “undertake no legal matters, nor any legal strategies, that conflict with Church Teachings [sic].”
• Under George W. Bush, Lloyd as a Health and Human Services official, advocated for a rule protecting health-care providers that oppose abortion rights on religious grounds.