Questionnaire Raises Concerns About Judge Kavanaugh’s Commitment to Fairly Interpreting and Applying Voting Rights Law and Raises Questions About His Subscription to a “Color-Blind” Philosophy
WASHINGTON, D.C. – Today, Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, issued the following statement in response to the July 20, 2018 questionnaire provided by Judge Brett Kavanaugh to the Senate Judiciary Committee in connection with his nomination to the U.S. Supreme Court:
“Judge Brett Kavanaugh’s questionnaire leaves open critical issues regarding his views on voting rights and discrimination. This omission is particularly problematic as voter suppression and racial gerrymandering remain threats today. Because of the high likelihood that the Supreme Court will be addressing cases involving constitutional and statutory interpretations of federal voting rights protections in the near future, including revisiting cases concerning gerrymandering that were remanded to lower courts this past term, this is a topic that must be examined during any Senate hearing. Judge Kavanaugh’s opinion in the South Carolina photo ID raises grave questions about his commitment to ensuring that all minority voters are given full access to the ballot box. Moreover, his central role working on behalf of the Bush/Cheney Recount following the 2000 Presidential Election raises questions about his highly politicized approach to questions concerning voting and elections.”
Clarke also raised concerns about Kavanaugh’s commitment to protecting affirmative action in light of materials in the questionnaire which suggest that Kavanaugh subscribed to a “color-blind” philosophy. Clarke observed: “Moreover, Judge Kavanaugh’s questionnaire demonstrates that he embraces the fallacy of color-blindness, trying to erase the experience of racial and ethnic minorities to advance legal and policy arguments that will undermine civil rights protections for people of color. One look at our criminal justice system, housing discrimination, voting rights, education, and economic justice reveals that racism is an issue which shapes our political reality in this country today. Americans deserve a judge who wholly rejects the fallacy of color-blindness. His view is particularly problematic in light of this administration’s assault on race-conscious admissions policies at colleges and universities, which increases the likelihood that affirmative action may return to the Supreme Court in the near future.”
Select Materials from Judge Kavanaugh’s Questionnaire
South Carolina Photo ID
Judge Kavanaugh authored a 2012 decision granting preclearance under Section 5 of the Voting Rights Act of South Carolina’s photo ID requirement for in-person voting, which was enacted in 2011. At that time, preclearance could be obtained by South Carolina demonstrating, either to the federal trial court in Washington, DC or the Justice Department, that a voting change would not have the purpose or effect of discriminating on the basis of race, color, or membership in a language minority group. The Lawyers’ Committee for Civil Rights Under Law intervened in this litigation to challenge the law. Our evidence presented to the court demonstrated that African-Americans were more than twice as likely as white voters not to possess an ID that is acceptable under Act R54. At the time of the litigation, there were 60,913 active African American registrants who would have been prevented from voting in person by regular ballot unless they obtain some form of required ID.
On October 10, 2012, following a five-day trial, the three-judge district court denied preclearance for implementation of the photo ID requirement in the November 2012 election. However, the court determined that the requirement should be precleared for elections to be held beginning in 2013.
Judge Kavanaugh determined that the law would not disproportionately and materially burden minority voters for elections beginning in 2013 because of a provision included in the law – known as the “reasonable impediment provision” – that allows voters who do not have photo ID, but who have the type of non-photo ID previously allowed for voting (i.e., the non-photo registration card provided to each registrant), to still cast a ballot that will be counted if they sign an affidavit at the polling place and list a reason for not having obtained a photo ID. Since Judge Kavanaugh’s ruling, the “reasonable impediment provision” has proven insufficient for addressing the discriminatory impact of the photo ID law. The provision has caused confusion among voters and has not been enforced with clarity by state officials.
In his opinion, Judge Kavanaugh was silent regarding the need for Section 5 of the Voting Rights Act. District Judge Bates, joined by District Judge Kollar-Kotelly, filed a concurring opinion in which they emphasized: “the vital function that Section 5 of the Voting Rights Act has played here.” They observed that, but for Section 5, “South Carolina’s voter ID law certainly would have been more restrictive.”
Judge Kavanaugh’s Subscription to Color Blind Doctrine; Concerns Regarding His Position on Protecting the Supreme Court’s Precedent on Affirmative Action
Judge Kavanaugh embraces the fallacy of color-blindness, trying to erase the experience of racial and ethnic minorities to advance legal and policy arguments that will undermine civil rights protections for people of color. In a September 1999 Wall Street Journal editorial, Judge Kavanaugh dismissed the struggle of Indigenous Hawaiians to be recognized as a sovereign nation with a call for the Supreme Court to “adhere to the fundamental constitutional principle most clearly articulated by Justice Antonin Scalia: ‘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. It is American.”‘
His Wall Street Journal editorial makes light of the calls of indigenous Hawaiians to be recognized as a sovereign nation and crudely suggests that native Hawaiians have no plausible claim to be entitled to government relations like other native Americans. His editorial fails to even acknowledge that the Office of Hawaiian Affairs was created to help reconcile the harm caused by a century of atrocities committed against native Hawaiians. However, after 2 years of engagement and public comment, in 2016, a rule was promulgated setting for the “procedure and criteria for reestablishing a formal government to government relationship between the United States and the Native Hawaiian community.”
Judge Kavanaugh’s color blind position raises questions about his commitment to preserving the Supreme Court’s precedent in Fisher v. University of Texas, which upheld the constitutionality of race-conscious admissions policies. With the administration’s recent actions to undermine affirmative action efforts, Judge Kavanaugh’s views on the Court’s precedents are critical.
About the Lawyers’ Committee for Civil Rights Under Law:
The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. Now in its 55th year, the Lawyers’ Committee is continuing its quest to “Move America Toward Justice.” The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure, through the rule of law, equal justice for all, particularly in the areas of criminal justice, fair housing and community development, economic justice, educational opportunities, and voting rights. For more information, please visit https://live-lawyers-committee-2020.pantheonsite.io
Contact: Derrick Robinson | DRobinson@LawyersCommittee.org | 202-662-8327