The NAACP Legal Defense Fund, long identified as the legal arm of the civil rights movement, does not customarily endorse or oppose Supreme Court nominees. However, the organization does analyze a nominee's legal views and opinions, especially in connection to his or her record on civil rights and racial justice. Yet, when it comes to Brett Kavanaugh, President Donald Trump's second nominee to the high court, the Legal Defense Fund declared in a scathing 94-page report "that he is unfit to serve as the next justice of the Supreme Court."
In the formation of this report, LDF analyzed "over 300 written opinions, focusing on constitutional and statutory issues," from Kavanaugh's judicial record but was forced to determine that its review was "necessarily incomplete," given the astounding amount of unreleased documents from Kavanaugh's time in former President George W. Bush's administration. (Some of those documents have subsequently published by Democratic senators, including Sen. Cory Booker of New Jersey.)
"The nomination of Judge Kavanaugh to be a justice on the Supreme Court comes at a unique and unprecedented moment in our country’s history," LDF's report reads. "Our review of Judge Kavanaugh’s record grapples with the judicial philosophies he holds and the rulings he has issued. It also reflects the highly unusual context surrounding his nomination. His record on and off the court independently shapes our assessment of his fitness to serve on the nation’s highest court and our evaluation of the likely effect he would have on the Court’s jurisprudence concerning fundamental civil rights and protections."
During the Senate Judiciary Committee's confirmation hearings, Booker mentioned the peculiar timing of Kavanaugh's nomination. It wasn't until May 2017 that Kavanaugh's name appeared among potential nominees, which coincided with the appointment of Justice Department special counsel Robert Mueller, who launched an investigation into Russian interference in the 2016 election and possible obstruction of justice by the Trump campaign. If charges are ever brought against the president because of the Mueller probe, such a case would likely find its way to the Supreme Court. Kavanaugh told Booker and the Judiciary Committee on Thursday that he would not recuse himself from such a potential case.
Even beyond the troubling timeline of events that have led up to Kavanaugh's nomination, his judicial record, according to the NAACP LDF report, "reveals him to be an executive power maximalist ... who appears to believe in nearly unbridled Presidential power, including freedom from federal indictment." Kavanaugh's record on affirmative action, voting rights, police misconduct and other key issues in the scope of racial justice and civil rights is also deeply concerning, the NAACP LDF concludes.
Significantly, Democratic senators, including Booker and Sen. Mazie Hirono of Hawaii, have argued for the importance of releasing "committee confidential" documents from Kavanaugh's tenure in Bush's White House, because those senators had drawn similar conclusions about the judge's views on racial justice and the law. Those documents have included email exchanges that appeared to contradict Kavanaugh's portrayal of himself during the confirmation hearings. But even without access to the formerly shielded documents, LDF found ample evidence to render a negative verdict.
In one case, during Kavanaugh's work as a private lawyer, he defended a white rancher in Hawaii, who challenged a state law that restricted the election of trustees for the Office of Hawaiian Affairs (OHA) to Native Hawaiians. It's an agency that specifically handles land seized by the U.S. government when it annexed Hawaii in the late 19th century. Once the territory became a state in 1959, those ceded lands were placed in a trust. OHA was enacted to manage that land and help remedy past mistreatment of indigenous Hawaiians.
In the case in question, Rice v. Cayetano, Kavanaugh supported the rancher and filed an amicus brief on behalf of a group of organizations, including the Center for Equal Opportunity, which opposes affirmative action. LDF found that Kavanugh's involvement in the case "reflects a strong hostility to considering race even to remedy entrenched racial discrimination. His advocacy in connection with the case showed disturbing blindness to the need for legal remedies for historic discrimination," adding that Kavanaugh's confirmation would "threaten the government’s ability to use race to promote diversity and halt discrimination."
In another instance, Kavanaugh ruled in defense of a police officer who had unzipped a man's jacket without his consent. In United States v. Askew, Paul Askew was stopped by the police who said he matched the description of an armed bank robber. He complied with the officers and a pat-down search did not yield the discovery of any weapons, until the officers fully unzipped his jacket without his consent and found a gun.
Judge Kavanaugh rejected Askew's arguments that the gun should be excluded, and wrote in his decision that police "may reasonably maneuver a suspect’s outer clothing (such as unzipping an outer jacket so a witness can see the suspect’s clothing) when taking that step could assist a witness’s identification." He ruled that the officer hadn't violated Askew's Fourth Amendment rights and concluded that the government's "strong interest in identification of an armed robber outweighs the limited additional intrusion" on the individual's rights.
The D.C. Circuit Court eventually reversed Kavanaugh's decision. But "if accepted," LDF warned, "Judge Kavanaugh’s view would have greatly expanded police power during stop and frisks" — a practice that disproportionately targets black men. In general, LDF writes that "Judge Kavanaugh has shown nearly reflexive deference to assertions made by law enforcement and skepticism of the experience of people arrested for alleged crimes."
LDF cites a similar and troubling record when it comes to Kavanaugh's judicial rulings on economic justice. "Judge Kavanaugh’s record on workers' rights to organize and not to be discriminated against demonstrates the same disturbing trends as other parts of his jurisprudence: a willingness to trust and value the actions of institutional parties over individuals, and a tendency to stray from his self-professed textualism when doing so serves corporate interests or political ends," the report says. "We are deeply concerned that Judge Kavanaugh, if confirmed, will roll back important civil rights and economic protections, especially for communities of color."
In one case, Agri Processor Co., Inc. v. National Labor Relations Board, Kavanaugh broke from the majority opinion and Supreme Court precedent and argued that undocumented workers were not "employees" and therefore were not entitled to labor rights and protections under the National Labor Relations Act.
Finally, as voter suppression and gerrymandering continue to be hot topics — the Supreme Court ruled on several voting rights cases this year, with more to come — the Department of Justice under Attorney General Jeff Sessions has reversed its previous position and now supports a voter ID law that had been previously deemed discriminatory.
Kavanaugh upheld a voter identification law in South Carolina that the DOJ under Barack Obama had labeled a threat to the voting rights of tens of thousands of minority citizens. In South Carolina v. United States, Kavanaugh argued that the state's proposed voter ID law did not violate the Voting Rights Act and did not disproportionately burden or discriminate against people of color. According to LDF, Kavanaugh "readily downplayed evidence showing the law was enacted with discriminatory purpose."
For example, in an email exchange after the bill was passed, Republican supporter Ed Koziol wrote to State Rep. Alan Clemmons, the law’s chief author and leading sponsor, that black voters "would be like a swarm of bees going after a watermelon" if they were offered a $100 bill to obtain a voter ID card. "Amen, Ed. Thank you for your support of voter ID," Clemmons replied.
Kavanaugh acknowledged that the court was "troubled" by the correspondence, but did not deem it as sufficient proof of racial discrimination.
If Kavanaugh is confirmed, the LDF report concludes, "his jurisprudence will solidify the civil rights retrenchment with devastating consequences for the constitutional and legal protections of those who are most marginalized in our society for decades to come. We must oppose his confirmation to the Supreme Court of the United States."