With Southern states passing harsh new abortion restrictions aimed squarely at bringing a challenge in the Supreme Court, pro-choice activists are turning to one lawmaker who could be key to helping their cause, but hasn’t — New York Rep. Jerry Nadler.
Nadler has long been a supporter of abortion rights, but a mix of pro-choice and left-leaning court advocates are targeting him because as chairman of the House Judiciary Committee, he holds the rare position of being able to do the investigation into Supreme Court Justice Brett Kavanaugh that Republican senators never did.
They hope Nadler can get information that would jettison Kavanaugh from any abortion case.
“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, who heads the group Demand Justice.
As chairman, Nadler can do what then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) refused to do, and simply ask the National Archives to hand 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.
“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 Archives told the News it has gotten none.
The issue is especially thorny for Nadler, who is presiding over the Judiciary Committee at what could be one of the most consequential times in its history. Many of his colleagues are pushing him to be more aggressive in impeaching President Trump. But Democratic leaders believe that might actually help Trump, inflame his base and obscure the Dems’ popular messages in 2020. Investigating Kavanaugh could do the same for the justice.
Still, some lawmakers remain interested in getting the documents. “We don’t know what we don’t know,” said Sen. Richard Blumenthal (D-Conn.), who filed a lawsuit to get the same material. “We haven’t seen the vast majority of those records.”
The suit is pending. Blumenthal said he’d favor the easier method of having Nadler ask.
Activists hope Kavanaugh’s past statements force him to recuse himself from abortion cases. According to a 27-page memo prepared for Demand Justice that considers abortion as well as several other issues, there are several places Democrats should look.
For one, an email surfaced during confirmation where Kavanaugh wrote he was “not sure” everyone agreed Roe was settled because the Supreme Court “can always overrule its precedent, and three current Justices on the Court would do so.”
“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.
Nadler’s office declined to comment on the matter.
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