Brett Kavanaugh once predicted ‘one race’ in the eyes of government. Would he end affirmative action?

Washington Post

In the spring of 2015, Brett Kavanaugh returned to his alma mater in New Haven, Connecticut, to address the Black Law Students Association. The student who introduced him said Kavanaugh was concerned that African Americans and other minorities were being shut out of coveted clerkships with federal judges like him.

Kavanaugh concluded the session by handing out his email address and phone number and encouraging the Yale students to apply. Indeed, two of Kavanaugh's four law clerks this year were African-American students he met during annual visits to Yale, and Kavanaugh and his supporters have touted his record of hiring young lawyers from diverse backgrounds to work with him at the U.S. Court of Appeals for the District of Columbia Circuit.

"It was important to him that everyone have access," recalled Rakim Brooks, who introduced the judge that day and completed a year-long clerkship with him this summer just as President Donald Trump announced Kavanaugh's nomination to the Supreme Court.

Yet even as Kavanaugh has taken steps to open up an elite, historically white and male network, civil rights advocates cite legal opinions, interviews and writings that suggest he 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 up the demise of affirmative action in college admissions.

Civil rights advocates and Democratic lawmakers point in 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, inevitably find 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's list of potential Supreme Court nominees, including Kavanaugh.

The stakes are high because the man Kavanaugh would replace, Justice Anthony Kennedy, cast the deciding vote on a key affirmative action case two years ago. He joined the court's liberal justices to uphold the University of Texas' 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 and the University of North Carolina are already facing legal challenges.

During his 12 years on the bench, few cases have required Kavanaugh to take positions on matters directly involving race. Speculation about how he would approach these types of cases is based in part on his work as a lawyer at Kirkland & Ellis. There, Kavanaugh teamed up with conservative lawyer Robert Bork and the Center for Equal Opportunity, a conservative think tank, in arguing that it was unconstitutional to bar people who were not Native Hawaiians from voting for trustees of the Office of Hawaiian Affairs.

While working on that case, Kavanaugh in a 1999 Wall Street Journal column urged the court to adhere to the constitutional principle that, he wrote, was most clearly articulated by Scalia in an earlier case involving racial preferences in hiring: "Under our Constitution there can be no such thing as either a creditor or a debtor race. ... In the eyes of government, we are just one race here."

The Supreme Court struck down the race-based voting qualification in a 7-to-2 decision written by Kennedy.

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 unnecessary 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 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."

Through his hiring and in his public statements, Kavanaugh has made clear that the topic of racial discrimination is often on his mind. When he was introduced as Trump's nominee at the White House in June, one of the first things he mentioned was his mother's work as a public high school teacher in Washington in predominantly African-American schools.

"Her example taught me the importance of equality for all Americans," Kavanaugh said.

In response to questions from the Senate Judiciary Committee, Kavanaugh listed what he considered his 10 most important decisions. He identified nine that went to the high court and a 10th involving a Fannie Mae employee who was fired shortly after complaining about an executive's use of a racial slur to refer to him. Kavanaugh sided with the employee and wrote a separate opinion to which he called attention in his questionnaire.

"Calling someone the n-word, even once, creates a hostile work environment," he wrote. "My opinion explained: 'No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans.'"

In the 2012 case reviewing a South Carolina voter identification law, Kavanaugh acknowledged concerns from the Justice Department and civil rights groups about the disproportionate impact on black voters, who were less likely to have an acceptable photo ID, according to court filings.

"Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012," Kavanaugh wrote. "... The long march for equality for African-Americans is not finished."

Kavanaugh joined with two other judges to delay for one year implementation of the voter-ID requirement. But their unanimous decision cleared the law to take effect after the 2012 election.

"The rhetoric is a lot less significant than the ruling itself," said Todd Cox, director of policy at the NAACP Legal Defense Fund. "That is the thing that has the impact on real people's lives."

Civil rights advocates say it is telling that Kavanaugh did not join the other judges — Colleen Kollar-Kotelly, a Clinton nominee, and John Bates, a George W. Bush nominee — in a separate opinion in which they noted the "vital function" of the Voting Rights Act provision that required federal oversight of election laws in states with a history of discriminatory practices.

The following year, the Supreme Court invalidated that provision, known as Section 5.

Throughout his tenure on the bench in Washington, D.C., Kavanaugh has returned six times to Yale to speak to the black law students' group. Of the 48 clerks he has hired, 13 are minorities. Nine of the 13 have gone on to Supreme Court clerkships, according to statistics compiled by his former clerks and first reported by the National Law Journal.

Rakim Brooks credits Kavanaugh for his efforts to diversify the elite clerkship track. He signed a letter submitted this month to the Senate from the judge's former clerks that praises Kavanaugh as a mentor, friend, intellect and highly qualified nominee.

But Brooks, who grew up in public housing in East Harlem and was the first in his family to attend college, is concerned about the future of civil rights. His feelings about the nomination fight are complicated.

He said his respect and admiration for the judge don't "mean people shouldn't fight and challenge Judge Kavanaugh's nomination if they disagree. I think they should."

"There was no one that President Trump was going to appoint who was likely to advance the civil rights agenda beyond where Justice Kennedy is leaving it," Brooks said.

The Washington Post's Robert Barnes contributed to this report.

First published by The Washington Post

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