On Thursday, Sens. Cory Booker (D-NJ) and Maizie Hirono (D-HI), two Senate Judiciary Committee members, took the bold step of releasing confidential emails from Supreme Court nominee Judge Brett Kavanaugh that revealed his troubling positions on race.
Hirono tweeted out screenshots emails from Kavanaugh’s time as a lawyer in the George W. Bush White House that are stamped “committee confidential.”
The “committee confidential” designation, given by Republicans, ensures that the public cannot see them and Democrats cannot ask Kavanaugh about them during the hearing.
“These are the docs Rs don’t want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form,” Hirono said.
These are the docs Rs don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form. pic.twitter.com/yj31vDNGia
— Senator Mazie Hirono (@maziehirono) September 6, 2018
In the 2002 email thread about “Treasury testimony on Capital Investment in Indian Country,” Kavanaugh said “targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the constitution,” suggesting they are not a constitutionally protected class.
“I would defy anyone reading this document to conclude this document should be deemed confidential in any way shape or form,” Hirono told the committee.
Hirono’s leak follows the lead of Sen. Cory Booker, who was the first senator to personally release “committee confidential” documents earlier in the day.
Booker leaked four pages of documents the GOP marked as confidential from Kavanaugh’s time in the Bush White House that Booker suggests shows the nominee saying he is open to racial profiling by police. Booker was so committed to getting this document to the public that he potentially violated the committee chair’s rules to release the document, even if it meant a possible ejection from the Senate.
In one of the leaked emails, Kavanaugh questioned the use of affirmative action regulations by the Department of Transportation (DOT) calling the policy a “naked racial set-aside.”
“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in reality is a naked racial set-aside,” Kavanaugh writes in one of the emails from 2001.
Kavanaugh adds that he believes four conservative Supreme Court Justices will “realize as much in short order and rule accordingly.”
In another email from 2002 with the subject line “Racial Profiling,” one of Kavanaugh’s colleagues in the Bush administration writes that there is a school of thought that if using race in airport security and law enforcement is effective, then “perhaps we should be using it in the interest of safety, now and in the long term.”
Later in the email thread, Kavanaugh writes:
“The people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple — and grapple now with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.”
Kavanaugh not dispute the allegations that using race is a more effective way of providing security in airports and law enforcement agencies.
Booker questioned Kavanaugh about this email Wednesday night, as well as his other troubling views on race related to affirmative action, voting rights, and his claim that everyone would be “one race” by 2019.
“We have a long way to go,” Booker told Kavanaugh Wednesday. “We have work to do, black folks and white folks honoring the history of a united America fighting to make us more just. The Supreme Court has a vital role in that […] Nothing you say gives me comfort, should you get on the Supreme Court, that you will drive forward and see we have that work to do.”
Emails from the tens of thousands of “committee confidential” documents are beginning to make their way to the public. A March 2003 email exchange leaked to The New York Times on Thursday also suggests Kavanaugh does not think Roe v. Wade is the “settled law of the land,” contradicting his previous statements.