WASHINGTON — With states passing harsh abortion restrictions aimed squarely at bringing a challenge in the Supreme Court, pro-choice activists are turning their attention to one lawmaker who could help their cause, but hasn’t — New York Rep. Jerry Nadler.
Nadler has long been an adamant supporter of abortion rights, but a mix of pro-choice and left-leaning court advocates are focusing on him because he is in the unique position of being able to do the investigation into the high court’s newest conservative justice, Brett Kavanaugh, that the Republican Senate never did.
“With the stroke of a pen, Chairman Nadler can obtain the documents that Republicans worked so hard to conceal during Kavanaugh’s confirmation last year,” said Brian Fallon, a former Chuck Schumer and Hillary Clinton aid who heads the group Demand Justice.
As chairman of the House Judiciary Committee, Nadler can do that simply asking the National Archives
Democrats wanted to pore over millions of documents from Kavanaugh’s time in the White House of George W. Bush, where he was staff secretary and a White House lawyer. The idea was to see if, among other things, Kavanaugh had expressed opinions about the landmark Roe v. Wade abortion rights ruling that would be disqualifying.
But only a committee chair can compel the National Archives, which holds the records, to turn them over. Then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) refused to, allowing an attorney who worked with Kavanaugh to select a far smaller number of records.
But now Nadler is a chairman, and he has the power to ask.
“These materials could potentially prove Kavanaugh lied under oath or they could at the very least provide a basis to insist he recuse himself from any case regarding Roe,” said Fallon. “Kavanaugh should not get the final say on abortion rights, and House Democrats should be pursuing every option at their disposal to prevent that scenario.”
Fallon’s Demand Justice and more than two dozen other groups wrote to Nadler in April asking him to make the request.
A spokesperson for the National Archives and Records Administration told the News that it has gotten no such requests.
The issue is especially thorny for Nadler, a Democrat who is presiding over the Judiciary Committee at what could be one of the most consequential times in its history. Many of his colleagues on the committee are pushing him to be more aggressive in seeking an impeachment of President Trump. But most Democratic leaders believe that might actually play into Trump’s hands, enflame his supporters and obscure the Democrats’ messages on kitchen-table issues,
Any attempt to investigate Kavanaugh — who many Democrats believe lied to the Senate — could be cast in a similar light, potentially adding fuel to an argument of Democratic overreach that some Democrats fear could cost them in 2020.
Still, some lawmakers are still interested in getting the documents.
“We don’t know what we don’t know,” said Sen. Richard Blumenthal (D-Conn.). “We haven’t seen the vast majority of those records.”
Blumenthal is still pursuing a freedom of information act lawsuit to obtain the information. Speaking after a news conference to unveil a bill designed to protect abortion rights, Blumenthal said he would favor Nadler asking for the information instead.
Activists hope Kavanaugh’s past statements force him to recuse himself from any abortion cases, among others. According to a 27-page memo prepared for Demand Justice and the other groups that was obtained by the News, there are numerous areas in Kavanaugh’s past that bear closer scrutiny, including the briefly investigated assault claims leveled Dr. Christine Blasey Ford and others.
But it’s the sudden threats against Roe that are commanding attention now. States like Alabama, Georgia and Missouri have all passed strict laws criminalizing abortion, with Alabama’s targeting pregnancies in only the sixth week. Anti-abortion advocates have praised them as vehicles to challenge Roe.
The lengthy memo begins with abortion, then gets into several places Democrats want to look.
For one, an email surfaced during confirmation in which Kavanaugh wrote he was “not sure that all legal scholars refer to ?Roe? as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”
Kavanaugh told Sen. Susan Collins (R-Maine) at in his confirmation that he did think Roe is settled. Demand Justice’s memo says the old papers could she light on whether he was truthful.
“He may have discussed the constitutionality of abortion precedent during his tenure in the George W. Bush administration, so there may be abortion-related cases from which he should recuse himself now,” the memo says.
The only way to find out, is to seek the documents.
Nadler’s office declined to comment on the matter.
