On Day 2 of his Supreme Court confirmation hearings, nominee Brett Kavanaugh was asked to describe the difference between Brett Kavanaugh the man and Brett Kavanaugh the judge.
In part of his response, he stated his belief as a person that “we’re all equal.” This principle would later be challenged by senators interested in how Kavanaugh sees (or claims to not see) race.
Kavanaugh the man was raised by a mother (a former judge) who taught at predominantly African-American schools, who himself made a point of mentoring black law students, and who highly reveres the book To Kill a Mockingbirdbecause it “forces you to confront the ugly history of racism in this country.”
Kavanaugh the judge, who for the past 12 years has served on the D.C. Circuit Court, argued against race-conscious policies and in 2012 sat on a three-judge panel upholding a South Carolina voter identification law that civil rights groups say disenfranchised minority voters and violated the Voting Rights Act. Kavanaugh declared Tuesday, “I’m proud of what we did.”
As the hearings wind down, it is this pride that worries civil rights advocates and Democratic lawmakers, who fear that if Kavanaugh replaces Justice Anthony Kennedy, would was the swing vote on affirmative action, it could deal a blow to decades of race-conscious practices in business, military, education and law.
“There’s a very great concern that he will strike down efforts to increase diversity and inclusion not only in education but in employment and all across the board,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “What that would mean is that organizations and institutions would be left without direct tools to actually increase diversity in their ranks. And that will be to the detriment for all of us.”
Before the confirmation hearings began on Tuesday, civil rights groups joined the Leadership Conference in writing a letter in opposition of Kavanaugh, who has been nominated to the Supreme Court by President Trump. The letter referred to Kavanaugh’s past opposition to “equal opportunity and affirmative action.”
In one case, Rice v. Cayetano — involving a Hawaii voting law that allowed only Native Hawaiians to vote in elections for the Office of Hawaiian Affairs — which was also brought up by Senator Mazie Hirono, D-Hawaii, and Senator Cory Booker, D-N.J., at Tuesday’s hearing, Kavanaugh wrote a 1999 op-ed calling on the Supreme Court to “adhere to the fundamental constitutional principle most clearly articulated by Justice Antonin Scalia: In the eyes of government, we are just one race here.”
“That statement shows his embrace of the conservative fallacy of colorblindness in America,” said Gupta. “It’s a demonstration that he’d be hostile to critical civil rights protections and equal opportunity programs that advance diversity and remedy past discrimination.”
The law, which accounted for past inequities faced by Native Hawaiians, was later ruled constitutional.
In a 2001 email newly leaked by Booker, Kavanaugh criticized an affirmative action policy within the Department of Transportation (DOT). “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.”
In another instance concerning a Supreme Court case against University of Michigan’s equal opportunity admissions policies, Judge Kavanaugh, who at the time in 2003 was serving as White House staff secretary to President George W. Bush, wrote in an email that the “Michigan program is unconstitutional because race-neutral programs should be employed.”
Also that year, when questioned about minority judicial nominees, Kavanaugh wrote in an email, according to the Wall Street Journal, “Diversity is a permissible goal but a state must use race-neutral criteria when available.” The email is among the documents provided by the lawyer for Bush to the Senate Judiciary Committee.
Last, in 2004 when Kavanaugh’s record with affirmative action came up during his confirmation for the D.C. Circuit Court, he said, “My personal views or the views of my former clients on these or other issues would not affect how I would approach decisions as an appeals court judge. I would carefully and faithfully follow all precedent of the Supreme Court.”
When asked on Tuesday night by Booker whether he still believed it is “never permissible for government to use race to try to remediate past discrimination,” Kavanaugh ultimately responded: “I approach questions like you are asking with a recognition of two things: one, the history of our country, and two, the real world today. … I have to follow precedent, and the precedent allows remedies in certain circumstances.”
But Booker wanted more than precedent. He pushed for Kavanaugh’s personal beliefs, what Kavanaugh the judge would do as a Supreme Court justice rather than reciting what’s been done in the past. “The opinions you expressed in the past, do you still hold those opinions now?” Booker asked.
“I have trouble departing from the Supreme Court precedent,” Kavanaugh eventually replied.
Kavanaugh closed his responses to Booker’s questions by referring to both his personal life and judicial record. He said he hoped “the sweep” of his background would give Booker, the first African-American Senator from New Jersey, “confidence that at least I’ve done my best to try and understand the real world … through my other role as a judge and hiring law clerks … to be very proactive in trying to advance equality for African-Americans.”
Kavanaugh talked about his meetings with the Yale Black Law Student Association dating back to 2012, when he called the group and said, “I’d like to speak about minority law clerk hiring because I’m told there’s a problem there.” He recounted how he “got a good crowd” and gave them his phone number and email. From there he said he “continued to encourage African-American law clerks, but it’s not just encouragement. I’ve given them help and advice and been a source of counsel. Why is that? Because I saw a problem.”
This problem Kavanaugh referred to was the lack of minority law clerks at the Supreme Court. He pointed out he sought on his own to address the problem, an initiative that has been likened to affirmative action.
Affirmative action, born of the civil rights movement, seeks to bring equality to minority groups and women in education and employment, but in the bigger picture, its aim is to rectify America’s history of racial discrimination.
“Because the problem is a racial problem,” said Kerrel Murray, a fellow at the NAACP Legal Defense Fund, “when you demand that the government closes eyes to the nature of the problem, you’re essentially prevented from addressing the problem effectively.”
The concept of colorblindness is what Dennis Parker, director of the ACLU Racial Justice program, called destructive. “When people say that they’re colorblind, what they’re saying is I don’t see race,” he said. “It assumes that there is no value in having racial diversity. And that minimizes the experiences of anyone who isn’t white.”
Concerns about affirmative action have been mounting since the Trump administration announced in July plans to reverse Obama-era guidelines on using race in college admissions.
And with the Justice Department’s support of a lawsuit brought against Harvard’s admission practices, affirmative action, which allegedly disadvantage Asian-American applicants, could be on the Supreme Court docket come fall. The challenge was brought by the same group in the divisive Fisher case that challenged the admissions policy of the University of Texas, a case in which Kennedy was the swing vote upholding the school’s policy. If confirmed, Kavanaugh would replace Kennedy as a key vote in future affirmative action cases.
Gupta said the question she wanted answered in the confirmation hearings is: “If [Kavanaugh] believes that diversity is indeed a value and is an important thing for us to strive for as a country in all of our institutions and organizations, but he wants to undermine affirmative action to achieve this so-called fallacy of a colorblind society, what exactly are the tools that he thinks are actually going to achieve that?”
Critics of affirmative action, who see the policy as reverse discrimination, are also holding out hope in Kavanaugh’s confirmation. “I hope a Justice Kavanaugh would be open to the arguments that we would make that the law does not allow racial discrimination in university admissions,” Roger Clegg, president of the Center for Educational Opportunity, an anti-affirmative action organization Kavanaugh helped file an amicus brief in 1999 for the aforementioned Rice v. Cayetano case. “I think that he’s somebody who believes in taking the words of the Constitution and words of statues seriously, and I think that that’s what’s needed in this area. And of course, there will be eight other justices up there too.”
As the hearings continue until Friday, stakeholders on either side of the affirmative action debate look to the future when a new justice is confirmed.
“Usually the courts are reluctant, every time the Supreme Court changes, to review past decisions because you want some sense of continuity,” said Parker. “And you want decisions to be made not on political bases but on some idea that there are objective standards.”
Meanwhile, some don’t see affirmative action going anywhere, whether Kavanaugh is confirmed or not.
“This country wants to believe that everything is equal,” said Kent D. Lollis, executive director for diversity initiatives at the Law School Admission Council. “But as long as you have segregated schools, [children] who are victims of underfunded colleges and universities, and the prison-to-pipeline system for young minority males, you have to have something to counterbalance that.”
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