Why We’re Opposing Judge Kavanaugh
by Jim Santel, NAACP Legal Defense Fund Staff Writer
The NAACP Legal Defense and Educational Fund, Inc. (LDF) has been involved in more than 700 cases before the Supreme Court, including the landmark decision that ended legalized segregation in public schools, Brown v. Board of Education. We are thus deeply invested in ensuring that the Court continues to uphold the Constitution’s guarantee of equal protection of the laws, which is why we have carefully evaluated and reported on the records of every Supreme Court nominee for the last 30 years. We don’t always take a stand on a nominee’s fitness to serve, but when we do, it’s because we believe that core issues of justice and equality are at stake.
That’s the case with the current nominee to the Supreme Court, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, whom President Trump selected to replace retiring Associate Justice Anthony Kennedy. After carefully reviewing Judge Kavanaugh’s many opinions, writings, and statements — and after considering the extraordinary context in which this nomination arises — we concluded that his appointment to the Supreme Court would gravely imperil critical civil rights protections and threaten racial justice in America, leaving us no choice but to oppose his confirmation.
As we explain in a 94-page report released last week, Judge Kavanaugh’s record shows that he is hostile to many of the rights and protections that have empowered African Americans, women, and workers in the United States over the last 50 years. Giving him a lifetime appointment to the nation’s highest court would endanger the progress that so many have given so much to secure.
Take affirmative action. America’s long history of racial discrimination makes race-conscious remedies not only just, but necessary. But as a private attorney for an anti-affirmative action group, Judge Kavanaugh co-wrote an amicus brief opposing a Hawaii law intended to correct the state’s past injustices against its native inhabitants. He didn’t just challenge the law on its merits, however. He compared the Hawaii program to the Jim Crow regime upheld by the Supreme Court’s ruling in Plessy v. Ferguson — an astonishingly disingenuous misreading of history that conflated an affirmative action program with a court ruling that made such a program necessary in the first place.
Judge Kavanaugh didn’t stop there. In a Wall Street Journal op-ed supporting the brief, he wrote that “there can be no such thing as either a creditor or debtor race,” a quotation of a solo opinion by Justice Antonin Scalia that blatantly ignored the Supreme Court’s affirmation of race-conscious jurisprudence. With the Hawaii episode, Judge Kavanaugh showed himself willing to ignore both history and legal precedent in order to attack state efforts to alleviate the effects of discrimination.
He is equally blind to the need for robust federal protection of the right to vote. As a circuit court judge, he upheld a South Carolina voter ID law that the Justice Department deemed a threat to the voting rights of tens of thousands of minority citizens. In doing so, he didn’t just ignore the Justice Department’s assessment. He also overlooked strong evidence showing that the law was drafted with a discriminatory purpose, and he did not question the state’s baseless claims that the law was necessary to prevent voter fraud, a disturbing acceptance of a myth widely used to suppress minority voting rights.
Judge Kavanaugh also frequently sides with large corporations against ordinary Americans seeking equality in the workplace. In numerous cases, he has ruled against employees’ right to unionize, and he has often dismissed claims of workplace discrimination before they can even reach trial. When corporations bring legal action, by contrast, Judge Kavanaugh has almost always given them a hearing, suggesting he is more sympathetic to the concerns of the rich and powerful than to the rights of the less well-connected. Similarly, he has shown a deep suspicion of federal regulatory agencies, often seeking to restrict their ability to enforce key environmental, worker, and consumer protections that disproportionately benefit the poor and the vulnerable.
None of these views is terribly surprising when you consider that Judge Kavanaugh was handpicked for this nomination by the Federalist Society, an ultraconservative group that seeks to limit the federal government’s role in enforcing civil rights and promoting equality. As a candidate, Donald Trump promised to select only judges approved by the Federalist Society, an unprecedented outsourcing of the power of judicial appointment to an explicitly ideological organization. He has kept that promise.
Judge Kavanaugh’s ideology alone should be enough to disqualify him for this post. But it is impossible to ignore the extraordinary context surrounding his nomination. President Trump is the subject of several ongoing investigations, and while we don’t yet know whether he committed any crimes, several of his associates have pled guilty or been convicted. There is a real possibility that the Supreme Court will soon be asked to weigh in on some aspect of the investigation, such as whether the president can fire a special prosecutor or refuse to obey a subpoena. Unless and until the legal questions surrounding President Trump are dispelled, the Senate should not confirm any Supreme Court nominee from this administration. To do otherwise would call into question the integrity of the Court and the impartiality of our justice system.
It would be especially troubling if Judge Kavanaugh were asked to weigh in on the actions of the president who appointed him. He holds extreme views of executive power. He believes that the president has absolute power to dismiss executive branch officers as he sees fit; he has argued that a sitting president must be allowed to defer criminal prosecutions until after he has left office; and he has argued that the president is effectively immune to indictment. He even once went so far as to question the correctness of the Supreme Court’s unanimous 1974 decision to compel President Richard Nixon to release the Watergate tapes. What most Americans view as an inspiring moment of judicial independence, Judge Kavanaugh sees as an unfortunate reduction in the powers of the presidency.
As our report makes clear, we can learn a lot about Judge Kavanaugh’s beliefs from his available record. But there’s still so much about him we don’t know, because Senate Republicans have rushed to begin his confirmation process before large portions of his record have been made public. Millions of relevant pages from Kavanaugh’s public career — including his time in the George W. Bush White House, where he weighed in on many legal key questions — won’t be released until late October. That means that Judge Kavanaugh’s confirmation hearings, which began yesterday, do not fulfill the Constitution’s requirement that the Senate provide advice and consent on judicial nominations. Instead of ensuring that the public has a chance to truly understand Judge Kavanaugh’s views, Republicans have sought to rush this process forward with as little transparency as possible. They are serving their own interests, not the public’s.
Unfortunately, it’s the public interest that will suffer if Judge Kavanaugh is confirmed. And the damage will not be minor: Supreme Court justices serve for life, meaning that he will be able to wield his extremist views against the rights of women, African Americans, and workers for decades to come. We cannot allow that to happen.