Earl Ofari Hutchinson
The instant Trump nominated Brett Kavanaugh for the SCOTUS the mad scramble began by legions of civil rights groups to find out just exactly what the judge said, did, and ruled on anything that remotely touched on civil rights. They were convinced that their worst nightmare about Kavanaugh and civil rights would come true. That’s that he was an avowed enemy of civil rights and would prove it once on the high court. The thought was there’d be smoking gun proof of that in his rulings on the appeals court. Their great fear was in part realized. But only in muddled and blurred part.
To start, his paper trail on issues directly involving race is thin. The one case that has been repeatedly cited to make the case that he’d be a disaster for civil rights on the SCOTUS is a suit brought by the ultra-conservative, Center for Equal Opportunity, whose virtual sole mission is to wage legal war on anything that even faintly smacks of alleged “racial preferences.”
Kavanaugh wrote the brief for the center in its challenge to a Hawaii law allowing only native Hawaiians to vote in elections for the Office of Hawaiian Affairs. On the surface, it seemed like a fair challenge, and a clear case of so-called “reverse discrimination.” Kavanaugh was direct: “Even assuming such past discrimination, a racial qualification to vote has ever been held necessary and narrowly tailored to remedy past discrimination…… It is a strict racial qualification that categorically excludes members of certain racial groups (all but Hawaiians).” But there was a larger implication in the case. That is that eliminating this law provides a legal launch pad for a broader assault on affirmative action programs that are not “narrowly tailored” as Kavanaugh contended.
But this case is so narrow and ambiguous, that at best trying to say how he’d vote on an affirmative action case before the court is just a partisan inference. Or, to be blunter, it is guesswork. There are a couple of other cases that pose a similar problem in trying to get a firm take on him on civil rights.
He upheld in 2012 the part of South Carolina’s voter ID law that allowed anyone who didn’t have a photo ID to vote by signing an affidavit. Was this a bad thing? The Justice Department said yes it was yet another ploy to suppress the minority vote. It blocked the law. Yet, the South Carolina law could have made it an iron-clad rule that no photo ID, no vote, period. But the fact that it did provide an alternative muddied the issue. The case could be made that it was yet another voter suppression ploy. If there was no provision for an affidavit, it would have been. However, the provision was there and Kavanaugh thought that was enough to not toss the law.
The other case was an employment discrimination case. On this, Kavanaugh’s dissent seemingly provides the hard evidence that he’d hammer civil rights on the high court. In this instance, a black woman was fired from a congressional staff position. She claimed retaliation and discrimination and sued. The court agreed. Kavanaugh didn’t and dissented. On the other hand, he did write that using racial epithets did create a racially hostile atmosphere and that discrimination lawsuits could be filed under the civil rights act.
So, which of these situations truly tells what Kavanaugh thinks about the range of cases from employment discrimination to racial disparities in the criminal justice system that invariably will wind up on the court docket? There’s more still. Kavanaugh did take an intense interest in the affirmative action battles that embroiled the Bush administration when he was an Associate White House counsel to Bush. He monitored memos that flew back and forth by conservative groups about the University of Michigan law school case in 2003 that said race could be used as a factor in admission scrapped. They wanted the high court to scrap it. But he was cagey enough not to say where he stood on the issue.
He used the same non-committal template in telling about his role in the battle over the nomination by the President Bush of Mississippi district judge Charles Pickering to an appeals court post. Civil rights groups branded Pickering a hard-core racist and lobbied hard against the appointment. Kavanaugh was lambasted for pushing hard for the Pickering nomination. He did. But he did that for Pickering and other Bush nominees too since that was one of his job functions as a Bush counsel. There’s no evidence that Kavanaugh subscribed to any of Pickering’s views or actions on racial issues. Kavanaugh made sure that was the case.
The fear that Kavanaugh will take the same stance that conservatives have cemented in stone against anything that even remotely smacks of alleged racial preferences is a given. Whether that extends to all civil rights related cases though is another matter. It will be a titanic fight to try to figure out just how race matters to Kavanaugh. Much is at stake in finding the answer.
Earl Ofari Hutchinson is an author and political analyst. He is the author of The Kavanaugh Court (Amazon). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.