WASHINGTON — Native Hawaiian issues have a prominent place in U.S. Supreme Court nominee Brett Kavanaugh’s past.
And while the topic was not discussed on the opening day of Kavanaugh’s confirmation hearing Tuesday — the morning was marked by loud protests and partisan posturing — it will likely be a subject of inquiry from U.S. Sen. Mazie Hirono of Hawaii, who sits on the Judiciary Committee holding the hearing.
Hirono did not want to preview her line of questioning Tuesday, but a spokesperson said Kavanaugh’s previous comments about Native Hawaiian issues are “a serious concern.”
Kavanaugh’s history with Native Hawaiians began with a Big Island rancher named Harold “Freddy” Rice.
In 1996, Rice sued for the right to vote in Office of Hawaiian Affairs elections, at the time restricted to individuals of Hawaiian ancestry. Although Rice was born and raised in the islands, he was of European descent.
The nation’s high court took up Rice v. Cayetano in 1999, and Kavanaugh, then in private practice, was commissioned to co-author an amicus brief for the Center for Equal Opportunity, a right-leaning think tank with anti-affirmative action views.
The two other attorneys on the brief were well-known conservatives Roger Clegg and Robert Bork. The lattter had previously been nominated to the Supreme Court by President Ronald Reagan but not confirmed.
The cohort argued that the state was violating Rice’s constitutional rights — specifically the Fourteenth and Fifteenth Amendments — by denying him the right to vote based solely on race.
Kavanaugh, however, took the fight one step further.
Before the Supreme Court heard oral arguments, he wrote an op-ed for the The Wall Street Journal titled, “Are Hawaiians Indians? The Justice Department Thinks So.”
In the piece, Kavanaugh argued that the case could reverberate well beyond the islands.
He said that through OHA, the state of Hawaii had set up a system that “doles out money to certain citizens based solely because of their race.” If Hawaii’s law regarding OHA’s elections were allowed to stand, he warned that the consequences would spread beyond the ballot box.
“Hawaii’s naked racial spoils system, after all, makes remedial set-asides and hiring and admissions preferences look almost trivial by comparison,” Kavanaugh wrote. “And if Hawaii is permitted to offer extraordinary privileges to residents on the basis of race or ethnic heritage, so will every other state.”
Kavanaugh took a swipe at the Clinton administration’s defense of Hawaii, and the argument that Native Hawaiians should be considered in the same category as American Indian tribes, which are treated as sovereign nations with their own governing structures.
“If Hawaii is permitted to offer extraordinary privileges to residents on the basis of race or ethnic heritage, so will every other state.” — Brett Kavanaugh
He said that neither Congress nor the U.S. Department of Interior had federally recognized Hawaiians. He also said Hawaiians wouldn’t qualify as a tribe, considering, among other things, they don’t live on reservations, have elected leaders or their own set of laws.
“If Hawaii can enact special legislation for native Hawaiians by analogizing them to Indian tribes, why can’t a state do the same for African-Americans? Or for Croatian-Americans? Or for Irish Americans?” Kavanaugh wrote.
“After all, Hawaiians originally came from Polynesia, yet the department calls them ‘indigenous,’ so why not the same for groups from Africa or Europe? It essentially means that any racial group with creative reasoning can qualify as an Indian tribe.”
He added the Justice Department’s position was “fiercely anti-immigrant, flouting the principle that all American citizens have equal rights regardless of when they became citizens.”
The Supreme Court ultimately sided with Rice in a 7-2 decision that spurred many of the discussions about Native Hawaiians’ need for federal recognition.
Troy Andrade is an assistant professor at the William S. Richardson School of Law at the University of Hawaii who focuses on the legal history of the state and social justice.
Andrade, who is Native Hawaiian, said the views Kavanaugh expressed both in his amicus brief and the Wall Street Journal op-ed show a fundamental misunderstanding of Hawaiian history.
He said they ignore the generations of political and individual struggle Native Hawaiians endured after the overthrow of the Hawaiian Kingdom in 1893, and he worries it could affect their standing should the high court take up a case specific to their concerns.
“For Native Hawaiians the Supreme Court is not going to be a good place to take your case,” Andrade said. “The Supreme Court has always been an inhospitable venue for Native Hawaiian issues and indigenous issues. But this is just going to solidify that.”
He noted that Kavanaugh was nominated to replace retired Associate Justice Anthony Kennedy, who, although he was considered a swing vote on the court, wrote the decision in Rice v. Cayetano.
In his opening statements Tuesday, Kavanaugh said a “good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy.”
To observers that was a clear evocation of Chief Justice John Roberts’ own baseball analogy during his confirmation hearing in 2005 in which he said it was his job to “call the balls and strikes and not to pitch or bat.”
Andrade said that Kavanaugh’s world view, at least as it relates to Native Hawaiians, seems to come from a place in which everyone is on the same playing field.
“In reality some sides don’t have bats, some sides don’t have balls, some sides don’t have uniforms,” Andrade said. “Kavanaugh sees them as all the same, that we’re all equal without recognizing the historical trauma that has gone on in the community.”
Hirono and others on the Judiciary Committee are scheduled to begin their questioning of Kavanaugh on Wednesday.
During Tuesday’s hearing, she focused her opening statement on the fact that Kavanaugh was chosen by the conservative-leaning Heritage Foundation and Federalist Society to push a “dangerous anti-worker, anti-consumer, anti-woman, pro-corporate, anti-environment agenda.”
Hirono, who refused to meet with Kavanaugh before Tuesday’s hearing, described him as “knee-deep” in partisan politics.
Hirono announced she cancelled her meeting with Kavanaugh after Trump’s former campaign chairman, Paul Manafort, was found guilty of eight felonies and the president’s personal attorney, Michael Cohen, pleaded guilty to eight more crimes on the same day.
During Tuesday’s hearing, Hirono questioned whether Kavanaugh was picked specifically for his views on whether a sitting president can be criminally indicted and prosecuted while in office.
“The president is trying as hard as he can to protect himself from the independent, impartial and dogged investigation of his abuse of power before the walls close in on him entirely,” Hirono said.
“Because if there’s one thing we know about Donald Trump it is that he is committed to self-preservation every minute, every hour, every day. That’s why he chose Judge Kavanaugh.”
Hirono has built a reputation as a tough questioner of judicial nominees, so much so that she has become a favorite of the political organization Demand Justice, which aims to get Democrats to fight back against the Trump administration’s push to stack the courts with conservatives.
She said that while it seems likely Republicans will push through Kavanaugh’s nomination at all costs, she described her resistance as a “battle worth fighting,” especially considering his confirmation would seemingly solidify a 5 to 4 conservative majority on the court.
“A lifetime appointment to the Supreme Court of someone providing the fifth vote on issues impacting the lives of every working American is a battle worth fighting for,” Hirono said.
“So I intend to use this hearing to demonstrate to the American people precisely why who sits on the Supreme Court matters and why a fifth ideologically driven, conservative and political vote on the court is dangerous for this country.”
Hirono has already announced she will be voting against Kavanaugh’s confirmation.
Hawaii Sen. Brian Schatz said Tuesday he will also oppose the nomination when it goes to a full vote of the Senate, saying in a statement that as long as Republicans refuse to release Kavanaugh’s records, the process is “illegitimate.”
“I’ve seen enough,” Schatz said. “Every other Supreme Court nominee has turned over nearly everything, and I am now convinced they are hiding something. I will vote no.”
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