Brett Kavanaugh’s Track Record Indicates a Threat to Affirmative Action

As President Donald Trump’s nominee to the U.S. Supreme Court begins confirmation hearings this week, several civil rights advocacy groups are expressing concern that Brett Kavanaugh poses a threat to people of color. Kavanaugh’s views on affirmative action and voting rights are of particular concern to groups like the NAACP Legal Defense Fund and The Leadership Conference on Civil and Human Rights.

While Kavanaugh has never issued a ruling on affirmative action during his tenure as a U.S. Court of Appeals Judge for the D.C. Circuit, his writings and speeches on the topic strongly indicate that he favors a race-neutral approach to selecting individuals for employment or educational opportunities. Throughout his career, he has made numerous statements supporting the notion that no law or policy should dictate preferential treatment for certain races and has stated it is “inevitable” that the Supreme Court will one day rule in favor of this idea, according to The Washington Post.

Additionally, as White House staff secretary in 2003, Kavanaugh exchanged numerous emails with his colleagues in which they discussed the Supreme Court’s pending decision on Gratz v. Bollinger, about whether to allow the University of Michigan (U-M) to consider race in admissions decisions. They also issued a statement regarding the case — prior to learning of its outcome in favor of U-M — which characterized affirmative action as “divisive.” And last year, Kavanaugh himself denounced affirmative action as a misguided and discriminatory practice in a speech he gave at Notre Dame Law School.

If Kavanaugh’s appointment is confirmed, he could potentially decide the fate of race-conscious admissions in higher education. Many legal experts have suggested that an ongoing anti-affirmative action lawsuit against Harvard University will eventually make its way to the Supreme Court, potentially giving Kavanaugh the opportunity to exercise his views on the issue.

Kavanaugh’s record on voting rights is another area of concern for civil rights groups. In 2011, he supported a highly controversial law enacted by South Carolina Gov. Nikki Haley requiring all voters to carry government-issued IDs. The U.S. Department of Justice later blocked the law, arguing that it intentionally made it more difficult for people of color to vote.

In another instance, Kavanaugh sharply criticized Congress for passing a law dictating that only Native Hawaiians could elect members of the Office of Hawaiian Affairs. The rule was instated to allow formerly disenfranchised indigenous residents to accrue more legal power in their home state. Kavanaugh criticized the law in an op-ed piece for The Wall Street Journal, stating, “We are just one race here. It is American.”

Kavanaugh’s supporters, however, argue that he is in many ways a champion of civil rights protections. He has been quoted as stating that a “single utterance” of racially insensitive language could create a hostile work environment under federal law, and in his writings has emphasized that discriminatory actions by employers violate the Civil Rights Act of 1964.

In addition, Kavanaugh’s former law clerk, Luke McCloud — who is African American — has praised the judge for making a concerted effort to recruit and mentor young lawyers of color. “He acknowledges the history and current reality of race in this country and takes it into account … within the confines of his role as a judge,” McCloud told NBC News Chicago.