WASHINGTON — On Wednesday, each member of the Senate Judiciary Committee was given 30 minutes to question U.S. Supreme Court nominee Brett Kavanaugh.
Democrat Mazie Hirono used at least some of that time to give Kavanaugh a Hawaii history lesson.
Kavanaugh, who has been nominated to the court by President Donald Trump, wrote an incendiary op-ed in 1999 that questioned whether Native Hawaiians should be treated as indigenous people by the U.S. government.
The piece was in support of his position on Rice v. Cayetano, a case before the Supreme Court that questioned whether only Native Hawaiians could vote in elections for the Office of Hawaiian Affairs.
Hirono blasted Kavanaugh for arguing that Native Hawaiians are not indigenous because they came from Polynesia.
Her staffers held up a map for him showing that in fact he was wrong. Hawaii was always a part of Polynesia. It was the U.S. that came in and took over.
Hirono also criticized Kavanaugh for saying Native Hawaiians should not be treated the same as American Indian tribes, who are federally recognized as sovereign nations, because they don’t live on reservations or have their own form of government.
Again, she said, Kavanaugh is ignorant of the facts, noting that the islands had long been under their own rule before Captain James Cook “discovered” Hawaii in 1778.
“Judge Kavanaugh, it’s hard to believe you spent any time researching the history of Native Hawaiians,” Hirono said.
She said she was particularly concerned about his views in Rice v. Cayetano because the case is often used to challenge the validity of programs designed to help Native Hawaiians.
She even cited a 2002 email Kavanaugh wrote after the Rice decision in which he said as much.
“I think you have a problem here,” Hirono said. “Your view is that Native Hawaiians don’t deserve protections as indigenous people.”
She said that argument should raise serious questions for Alaska Natives, who have their own unique political and legal history that is much different that of the American Indian tribes in the contiguous U.S.
“I think my colleagues from Alaska should be deeply troubled by your views,” Hirono said.
Both of Alaska’s senators, Lisa Murkowski and Dan Sullivan, are Republicans.
And while most political observers expect Kavanaugh’s confirmation to come down along partisan lines, Murkowski has been viewed as a possible swing vote.
Kavanaugh, who was in the midst of his second day of inquiry before the Senate Judiciary Committee, defended his position in the Rice v. Cayetano amicus brief, which he wrote on behalf of the Center for Equal Opportunity, an anti-affirmative action conservative think tank, by saying that the court agreed with him and his co-authors in a 7-2 decision.
He also noted that the case involved a state election in which other minorities, including African-Americans and Latinos, would have been prevented from participating.
When it came to the question of whether Native Hawaiian programs should be scrutinized more heavily or have their validity questioned, Kavanaugh demurred by saying Congress has “substantial power” when it comes to such issues.
“I would want to hear the arguments on both sides,” he said. “I would keep an open mind.”
Hirono asked Kavanaugh the same two questions she’s posed to other Trump nominees about whether they’ve been accused of sexual misconduct or entered into a settlement agreement as a result.
Kavanaugh said no to both.
Hirono also pressed Kavanaugh on his relationship with Alex Kozinski, a former judge on the 9th U.S. Circuit Court of Appeals, who retired amid allegations of inappropriate sexual behavior with his several of his law clerks.
Kavanaugh himself was a clerk for Kozinski in the 1990s and had a close relationship with him over the years. Kozinski even introduced Kavanaugh to the Senate Judiciary Committee in 2006 when he was first nominated to the federal bench by then-President George W. Bush.
Hirono asked Kavanaugh whether he was ever aware of the “egregious and pervasive” allegations of sexual harassment and misconduct that followed Kozinski over the course of more than 30 years on the bench. Kavanaugh said he was not aware of any misconduct allegations.
She also wanted to know if he believed the allegations that women were making. Kavanaugh replied that he had “no reason not to.”
Kavanaugh said that had he been made aware of similar allegations against another judge he would have reported it to the federal codes of conduct committee, the chief judge in his district and the head of the administrative office for the U.S. Courts.
If that didn’t work, he said, he would have contacted the chief justice directly.
Still, Hirono expressed skepticism. “You saw nothing, you heard nothing and you obviously said nothing,” she said of what she called an open secret about Kozinski.
That’s one of the reasons the #MeToo movement is so important, she said, because it needs to change the culture of silence and complicity.
“I agree with you senator,” Kavanagh said. “There needs to be better reporting mechanisms.”
Kavanaugh is scheduled to appear before the Judiciary Committee again Thursday.
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