What to Know About Kavanaugh’s Record on Civil Rights

He once defended a white rancher in Hawaii who opposed affirmative action.

He upheld a South Carolina law that the Obama administration said would disenfranchise tens of thousands of minority voters.

And he defended the conduct of a police officer who unzipped a man’s jacket without his consent, ruling that the officer hadn’t violated the suspect’s Fourth Amendment rights.

This week, Judge Brett Kavanaugh, President Donald Trump’s nominee for the Supreme Court, has faced all manner of questioning during a rowdy and contentious Senate confirmation hearing. But his record on civil rights has received relatively little attention.

A critical report released last week by the NAACP Legal Defense and Education Fund examines Kavanaugh’s opinions and rulings on matters of racial and economic inequality. The analysis is based on a review “encompassing over 300 written opinions, focusing on constitutional and statutory issues.”

It is also “necessarily incomplete,” the report says, because of unreleased documents relating to Kavanaugh’s time as a staff secretary and lawyer for former President George W. Bush. (Some of those documents have since been leaked, shedding more light on Kavanaugh’s take on race.)

The White House did not respond to requests for comment Thursday on Kavanaugh’s civil rights record. During the second day of hearings this week, Kavanaugh sidestepped questions from Sen. Cory Booker, D-N.J., about his personal views on affirmative action and racial profiling.

Here’s a look at some of the reasons the Legal Defense and Education Fund is opposed to Kavanaugh’s confirmation:

When Kavanaugh worked as a private lawyer, he weighed in on a case in which Hawaii’s right to consider race as a factor when trying to remedy past discrimination was put into question.

In Rice v. Cayetano, a white rancher challenged a state law permitting only Native Hawaiians to vote for trustees for the Office of Hawaiian Affairs, an organization created to manage land that had been seized by the U.S. government during the annexation of the territory. The decision was made to compensate for how this act wronged indigenous people.

Supporting the rancher, Kavanaugh filed an amicus brief on behalf of the Center for Equal Opportunity, an anti-affirmative-action organization involved in the case.

The fund’s report argues that Kavanaugh’s opposition to race consciousness and affirmative action threatens “the government’s ability to use race to promote diversity and halt discrimination.”

In United States v. Askew, the courts considered the case of a police officer who had unzipped the jacket of a man who matched the description of an armed bank robber without his consent. The officer found a gun.

Kavanaugh rejected the argument that the gun should be excluded from evidence, writing that the police can reasonably “maneuver a suspect’s outer clothing when taking that step could assist a witness’s identification.” He added that the government’s interest in identifying an armed robber outweighed the “limited additional intrusion” on the individual’s rights.

His decision, which the fund said demonstrated how far Kavanaugh is willing to go to defend police conduct, was later overturned. It was seen by some critics as proof of his deference toward law enforcement and disregard for the experiences of those who have been placed under arrest, a population disproportionately represented by black men.

One of Justice Anthony Kennedy’s final opinions on the bench dealt a blow to public-sector unions, whose membership is made up mostly of black and Latino workers. Janus v. AFSCME made it illegal for public-sector employees to be required to pay union dues.

While on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled similarly in cases pertaining to workers’ rights, organizing efforts and the right not to be discriminated against by an employer based on race or protected status.

In his dissent in Agri Processor Co. v. NLRB, he opposed the majority opinion recognizing that protections under the National Labor Relations Act also applied to unauthorized workers.

“I would hold that an illegal immigrant worker is not an ‘employee’ under the National Labor Relations Act for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States,” Kavanaugh wrote.

In South Carolina v. United States, Kavanaugh argued that the state’s voter ID law, requiring that voters present an approved photo ID at the polls, did not violate the Voting Rights Act or pose a significant burden on black voters.

In an email sent to state Rep. Alan Clemmons, a leading sponsor of the law, Ed Koziol, a Republican supporter, had written that black voters “would be like a swarm of bees going after a watermelon” if they were offered $100 dollars to obtain a voter ID. Clemmons responded, “Amen, Ed. Thank you for your support of voter ID.”

The exchange took place after the bill was passed. Kavanaugh said that the court was “troubled” by the exchange, but that it was not proof of intentional discrimination.