The Kavanaugh Hearings

Next week, on September 4, the Senate Judiciary Committee will begin its hearings on the nomination of Brett Kavanaugh to fill retired Justice Anthony Kennedy’s seat on the Supreme Court.  One item that has drawn some attention, and will doubtless draw additional attention at the hearings, is a brief the Mr. Kavanaugh helped author for the Center for Equal Opportunity and other clients before the Supreme Court in 1999.  You can read that brief here. We thought that, as a CEO supporter, you might be interested in the Washington Post article excerpted below, which discusses that brief and what it might tell us about Brett Kavanaugh’s views on racial and ethnic preferences, a.k.a. affirmative action.  You can read the full article at the link provided at the end of the excerpt. 

Of course, it’s impossible to predict how a Justice Kavanaugh would rule based on a brief he wrote with other lawyers and for private clients nearly 20 years ago, and the Post article is predictable in quoting people on the left side of the aisle more often than those on the right.  Still, the obvious question is this:  Why should it bother anyone in 2018 that a justice might rule that all Americans, regardless of skin color, will be provided “EQUAL JUSTICE UNDER LAW”- the words inscribed on the front of the Supreme Court building?

By Ann E. Marimow
August 7 at 5:36 PM

…[C]ivil rights advocates cite legal opinions, interviews and writings that suggest [Kavanaugh] would weaken broad legal protections for minorities. Interest groups on both sides say Kavanaugh could be the vote conservatives have been looking for to speed the demise of affirmative action in college admissions.

Civil rights advocates and Democratic lawmakers pointin particular to an opinion he wrote in 2012 delaying but ultimately allowing voter identification requirements in South Carolina that were opposed by the Justice Department, and to his description in 1999, when he was a lawyer in private practice, of a government program for Native Hawaiians as a “naked racial-spoils system.” In that case, ­embracing the language of Justice Antonin Scalia, Kavanaugh wrote in a newspaper column that the Supreme Court would eventually, inevitablyfind that “in the eyes of government, we are just one race.”

 

Vanita Gupta, president of the Leadership Conference for Civil and Human Rights, said, “That kind of statement really signals that he will bring an anti-civil-rights agenda to the Supreme Court and fails to recognize the current reality of being a person of color in this country and the history of discrimination.”

 

“Kavanaugh’s worldview is not demonstrated by the fact that he’s appeared before black law students and hired diverse clerks,” she said, noting that he has also appeared nearly 50 times before chapters of the Federalist Society, the conservative legal group that has helped shape Trump’slist of potential Supreme Court nominees, including Kavanaugh.

 

The stakes are high because the man Kavanaugh would replace, Justice Anthony M. Kennedy, cast the deciding vote on a key affirmative action case two years ago. He joined the court’s liberal justicesto upholdthe University of Texas’s limited use of race as a factor in admissions. In an earlier case involving the racial makeup of public school districts, Kennedy declined to join conservatives in saying race could not be considered. These issues seem certain to return to the Supreme Court because admissions practices at Harvard University and the University of North Carolina are already facing legal challenges.

Roger Clegg of the Center for Equal Opportunity, who joined with Kavanaugh and Bork to submit an amicus brief in that case, said he suspects that Kavanaugh as a justice would “be hospitable to the kinds of arguments he was making.”

 

“Our hope is that he is correct in his prediction that the government will get out of the business of playing favorites on the basis of race and ethnicity, and that the court will recognize that it’s plainly prohibited.”

 

Clegg stressed that the way to end discrimination is for the government to stop categorizing Americans by race, a practice that he said is untenable in a multiethnic, multiracial society.

 

Still, Clegg said his expectations for Kavanaugh are tempered somewhat because he was acting then as a private attorney, not as a judge.

 

Civil rights advocates, however, say that Kavanaugh’s rhetoric about a “racial-spoils system” and his embrace of Scalia’s “one race” prediction leave little room for surprise when it comes to affirmative action.

 

“He’s not someone for whom you have to guess about,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. Saenz said he views Kavanaugh’s statements as particularly troubling at a time when white-supremacist groups and anti-immigrant sentiment are on the rise.

 

Justin Driver, a University of Chicago law professor, cautioned that affirmative action has been administered “last rites many times,” only to be saved by an improbable list of conservative justices. But he said that Kavanaugh’s language “signals great hostility to racial classifications.”

 

In a 2003 decision upholding the University of Michigan Law School admissions policy, Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

 

“We’re 10 years away from 2028,” said Driver, who clerked for O’Connor. If Kavanaugh joins the court, “it may well not last another 10 years.”

…

 

Link to full Washington Post article:
https://www.washingtonpost.com/local/public-safety/brett-kavanaugh-once-called-a-government-program-for-native-hawaiians-a-naked-racial-spoils-system-would-he-end-affirmative-action/2018/08/07/d4123ffc-94f4-11e8-a679-b09212fb69c2_story.html?p9w22b2p=b2p22p9w00098&utm_term=.f16f275ff1dd