On Wednesday evening, Sen. Cory Booker (D-NJ) questioned Supreme Court nominee Brett Kavanaugh on his views about race conscious programs, such as when universities consider race in a student’s admission. Kavanaugh dodged the questions at every turn — and mentioned the racial diversity of his judicial clerks, in response to a question about his opinion on affirmative action.
First, Booker asked Kavanaugh about an opinion he expressed in 1999 that racial discrimination would be over by 2019 — claiming that in “10 or 20 years,” the “inevitable day” will arrive when the government sees people as “one race.”
Kavanaugh expressed the opinion when working on a 1999 case with the Robert H. Bork and the Center for Equal Opportunity during his time at the law firm Kirkland & Ellis. The case involved a government program for Native Hawaiians, which Kavanaugh described as a “naked racial-spoils system” in a 1999. While he worked on the case, he wrote in a column that he agreed with Supreme Court Justice Antonin Scalia, who said in another case, Adarand Constructors Inc. v. Pena, about the consideration of race 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.”
When pressed about those comments on Wednesday, Kavanaugh said the idea that everyone would be considered one race by 2019 was “an aspirational comment.” He also said his comments were part of “a brief for a client, first of all so I was not saying something in my voice in particular.”
Booker said, “You seem to invoke Scalia’s one race theory quite often. You mentioned Scalia’s one race theory to a reporter, you mentioned it in a Wall Street Journal op-ed you wrote around the same time. Are you saying you don’t share Scalia’s idea that people seeking to address past discrimination, past harms, that they are seeking racial entitlement?”
Kavanaugh would not answer Booker’s questions, asked several times in different manners. When asked about his personal opinion, Kavanaugh instead repeated that he would rely on precedent.
“Senator, first of all I approach the questions you are asking with two things — one, the history of our country and two, the real world today, and I try as best I can to understand both the history of our country on that issue and the real world today so I’m coming at that from that perspective. You are asking about specific remedies for discrimination and there’s a lot as a judge you know and so I have to follow precedent and the precedent allows remedies in certain circumstances.”
At one point during Booker’s questioning, Kavanaugh responded, “I have promoted diversity in law clerk hiring.”
“You’re seeking a seat on the highest court of the land that will affect millions of people, and you have expressed opinions about these subjects to media, to press, and in speeches, but you’re not willing to say if you still hold those positions that you held before,” Booker replied.
Kavanaugh’s past record on affirmative action is troublesome, civil rights groups say. As the Wall Street Journal reported, in a 2003 email to a journalist who asked Kavanaugh, then associate counsel to George W. Bush, how the White House could talk up the diversity of their judicial nominees while opposing affirmative action policies, he wrote, “I continue to see no contradiction,” and “Diversity is a permissible goal but a state must use race-neutral criteria when available.”
His other views on things like voting rights, housing, and police brutality are also relevant to discrimination against people of color.
After the Obama administration focused on a voter identification law in South Carolina that required government-issued photo ID to vote, and found that it would disproportionately affect the voting rights of tens of thousands of people of color, Kavanaugh upheld the law. In 2012, he joined with two other judges in the case, who delayed the implementation of the requirement but allowed the law to go into effect after the election.
“South Carolina’s new voter ID law is significantly more friendly to voters without qualifying photo IDs than several other contemporary state laws that have passed legal muster,” he wrote at the time.
Todd A. Cox, director of policy at the NAACP Legal Defense Fund, told the Washington Post about the ruling, “The rhetoric is a lot less significant than the ruling itself. That is the thing that has the impact on real people’s lives.”
According to the Post, civil rights groups have pointed out that Kavanaugh did not join the separate opinion of other judges who mentioned the “vital function” of the provision of the Voting Rights Act that serves to hold states accountable for discriminatory practices in their election laws.
Kavanaugh also joined the majority opinion denying injunctive relief to plaintiffs who challenged the Department of Housing and Urban Development’s formula for grant disbursement to homeowners who lost their homes in Hurricane Katrina in the 2011 case Greater New Orleans Fair Housing Action Center v. U.S. Dept. of Housing and Development.
Plaintiffs brought the suit on behalf of Black homeowners in New Orleans who participated in the Road Home program. They had grant amounts calculated based on their homes’ pre-storm value. Plaintiffs said that the formula violates Fair Housing Act and Housing and Community Development Act of 1974 because it had a disparate impact on Black homeowners, since they were more likely to live in areas with lower property values. In Demos’ analysis of the case, the public policy organization focusing on issues of political equity, highlights that Kavanaugh, in joining this opinion, appears to question the idea of disparate impact, which maintains that a facially neutral policy can still have an adverse impact on a protected class. One Trump administration nominee for the head of the civil rights office, Kenneth Marcus for the head of the Office for Civil Rights within the U.S. Department of Education, argued against the consideration of disparate impact. Marcus has been confirmed.
In another case that affects people of color, District of Columbia v. Wesby, on whether police officers could be held legally responsible for 21 arrests of people for trespassing, Kavanaugh sided with police. Booker referred to the case during his questioning of Kavanaugh.
Police responded to a noise complaint and began questioning people at the party, which they said was a “makeshift strip club” and could not find the hostess of the party. Kavanaugh dissented from the D.C. Circuit’s decision to side with partygoers who sued for false arrest. The D.C. Circuit and Court of Appeals ruled that officers were not immune from legal action that resulted from those arrests. The U.S. Supreme Court ruled in favor of the police officers. Justice Ruth Bader Ginsburg said the officers had immunity but that the “court’s jurisprudence . . . sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protections.”
In 2016, Kavanaugh wrote that although the officers could have walked away from the party or broken up the party and left, “in retrospect, that might well have been a better decision.” Kavanaugh appears not to be cautious of broad powers for police, which often disadvantage people of color, who are subject to police brutality. He wrote, “But regardless of whether the officers had probable cause, they are entitled to qualified immunity because they at least reasonably could have believed that they had probable cause … To begin with, the probable cause standard itself gives police officers substantial leeway when determining whether to make an arrest.”
When Booker asked him about the case, Kavanaugh said, “I am very aware of reality and perception of targeted policing or police activity in minority neighborhoods or I try as best as I can. The Wesby case in my view had nothing to do with that issue.”