Executive Session
Floor Speech
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Ms. HIRONO. Mr. President, I rise today in opposition to the nomination of Brett Kavanaugh to the Supreme Court of the United States. Based on an in-depth examination of his legal career, academic writings, and judicial record, I conclude that he has a long pattern of misstating facts and misapplying the law in order to further his partisan political agenda.
His partisan, ideologically driven agenda is particularly troubling in cases involving women's intimate personal decisions.
Roe v. Wade and its progeny represent an acknowledgment in American law and life that women ought to have control over whether and when to bear children, but it is more than that. As Justice O'Connor explained in Casey v. Planned Parenthood, ``It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.''
The Supreme Court's jurisprudence on reproductive rights is based on case law going back decades that has assured Americans the right to educate their children as they see fit; to marry anyone, no matter their race; and to decide whether to use contraception inside or outside of marriage. It is part of a jurisprudence of privacy and autonomy that became a bedrock of American society that we have all relied on to create families, choose professions, and raise children. But Brett Kavanaugh, through his political choices and affiliations, as well as his legal and judicial writing, has told us loud and clear that he does not respect a woman's right to make her own intimate, personal decisions and will do whatever he can, once confirmed, if confirmed, to narrow and overturn Roe v. Wade.
A recent speech Kavanaugh delivered gives us further insight into his own legal views on the topic. In 2017, at the American Enterprise Institute, Kavanaugh gave a speech in tribute to the late Chief Justice William Rehnquist. In his remarks, Kavanaugh praised Rehnquist's dissent--dissent--in Roe v. Wade where the late Chief Justice found no constitutional right to abortion because the right was not ``rooted in the traditions and conscience of our people.'' Thank goodness the rest of the Supreme Court did not follow Chief Justice Rehnquist.
To learn about Brett Kavanaugh's own legal views on reproductive rights, we need only look at his dissent in last year's DC Circuit case Garza v. Hargan. Here, a 17-year-old undocumented immigrant sought release from government custody to obtain an abortion.
Kavanaugh's first fundamental misstatement in this case was mischaracterizing it as a ``parental consent'' case. It was not. The young woman had already received a proper judicial bypass from a Texas judge and therefore did not need parental consent.
For a judge applying for a promotion to the Supreme Court to completely misstate the issue in the case was astounding to me. In my view, a first-year law student would not have deemed the Garza case to be a parental consent case, but that is what he said.
Then, when applying the legal test under Roe and Casey to determine whether the young woman's rights were being subject to an ``undue burden,'' Judge Kavanaugh would have ruled against her. He thought nothing of keeping a 17-year-old as a prisoner of the government Office of Refugee Resettlement instead of releasing her to get an abortion that was entirely within her rights to seek.
Compare that to the ease with which Judge Kavanaugh found that religious employers, in the case of Priests for Life v. Department of Health and Human Services, were burdened by filling out a two-page form. The employers there were seeking to avoid paying for any employee's health insurance that covered contraception, saying it burdened their free exercise of religion.
The majority of the DC Circuit held that asking the employers to fill out a brief form to let the government know of their objection was not a substantial burden, but Judge Kavanaugh disagreed and would have ruled to deny the female employees their proper health coverage, siding with the Priests for Life. Judge Kavanaugh's colleague on the DC Circuit went out of her way to write a concurring opinion to directly rebut Judge Kavanaugh's dissent and correct his misstatements of the case.
To Judge Kavanaugh, holding a woman in government custody unnecessarily and against her will does not represent an undue burden on the exercise of her constitutional right to an abortion, but when it comes to a religious employer opting out of providing contraceptive coverage to an employee, a two-page form is too great a burden.
The pattern of Judge Kavanaugh's views on the right to abortion is clear. Anyone who feels assured he will uphold Roe v. Wade is living in a fantasy world.
Laws that narrow women's reproductive rights in States like Texas, Iowa, and Louisiana are currently making their way to the Supreme Court, and all evidence shows that Judge Kavanaugh will side with them. Advocates for women's reproductive rights are against Judge Kavanaugh's ascent to the Supreme Court with good reason.
Another aspect of his judicial record that argues against confirmation is Judge Kavanaugh's pattern of dissents. Dissents are revealing. It is where judges go out of their way to voice their disagreement with the majority on the court to show what their views are. Judge Kavanaugh has the highest dissent rate among active DC Circuit judges at 5.1 dissents per year.
One study I introduced at his hearing showed that he consistently sided against workers and immigrants and only once favored consumers in his dissents.
Another study showed he consistently sided against protecting the air we breathe and the water we drink. So environmental and consumer rights groups are against Judge Kavanaugh's ascent to the Supreme Court with good reason.
Yet another study analyzed his dissents and found that Judge Kavanaugh tended to dissent more often along partisan lines than his colleagues and his ``divisiveness . . . ramped up during political campaigns'' before Presidential elections. This is more than mere coincidence. It also found that he had the highest rate of what the study called ``partisan dissents''--where the other judges in the majority were appointed by the opposing party; in other words, by Democratic Presidents. Again, this is not the sort of fairminded consideration of the facts and the law necessary for a Supreme Court Justice.
His partisanship was clearly on display for all to see at his Thursday hearing.
For me, as a Senator from Hawaii, Judge Kavanaugh's pattern of misstating the facts and misapplying the law is evident in his work on the case of Rice v. Cayetano and the rights of Native peoples.
President Trump has demonstrate through signing statements, budget proposals, and proposed regulations that he views programs for our indigenous communities as unconstitutional racial classifications, and he found a like-minded Supreme Court nominee in Brett Kavanaugh.
Brett Kavanaugh has a long history of misstating facts and misapplying the law in order to curtail the rights of indigenous peoples--Native Hawaiians, Alaska Natives, and American Indians.
As an attorney in private practice in 1999, Brett Kavanaugh coauthored a friend-of-the-court brief in support Harold ``Freddy'' Rice's challenge to the voting structure of the Office of Hawaiian Affairs--a State office established in Hawaii to work for the betterment of Native Hawaiians. Mr. Rice sued then-Governor of Hawaii Benjamin Cayetano, and the case made its way to the U.S. Supreme Court.
Judge Kavanaugh coauthored his amicus brief with other highly conservative legal advocates, including Robert Bork--a harsh critic of the Civil Rights Act of 1964 when it was proposed. Judge Kavanaugh separately, in addition to working on this amicus brief, wrote an op-ed for the Wall Street Journal titled ``Are Hawaiians Indians?'' that made false and offensive arguments.
In his op-ed and amicus brief, Judge Kavanaugh relied on incorrect facts and misstatements, ignoring obvious truths that contradict his position. He relied on these incorrect facts in order to reach his political conclusion that Native Hawaiians and arguably other indigenous communities who do not fit his limited view of Tribal structure are not afforded any special protections by the Constitution.
He called OHA's voting structure into question under the 14th Amendment, calling it a ``naked racial spoils system.'' In describing the Native Hawaiian community, he went out of his way to ignore their history, cobble together blatant falsehoods, and call into question their status as an indigenous people.
His op-ed argues that Native Hawaiians are not entitled to constitutional protections given to indigenous Americans because, as he put it, ``They don't have their own government. They don't have their own system of laws. They don't have their own elected leaders. They don't live on reservations or on territorial enclaves. They don't even live together in Hawaii.''
Judge Kavanaugh is saying that Native groups in the United States derive their rights from having been herded onto reservations and cheated out of their land and that they surrender their rights when they move outside of these artificial boundaries. It is not only factually wrong but deeply offensive. Kavanaugh argues that an indigenous community must have its own government, system of laws, its own elected leaders, and live together on a reservation to be considered indigenous. By that, he means that only federally recognized Tribes in the lower 48 States are afforded any protections.
After Judge Kavanaugh made his troubling and misleading arguments in the amicus brief and op-ed, the U.S. Supreme Court decided Rice v. Cayetano. They ruled that Hawaii's voting structure for the Office of Hawaiian Affairs violated the 15th Amendment's voting rights guarantees. The Supreme Court, in Rice, relied only on the 15th Amendment. It did not address the 14th Amendment argument Judge Kavanaugh made in his amicus brief, which claimed that the Office of Hawaiian Affairs' voting structure was an unconstitutional ``racial voting set-aside.'' But Judge Kavanaugh and his conservative allies continued to misstate and misconstrue the holding in Rice for their own political purposes.
In the Bush White House, Judge Kavanaugh continued to misapply the law in Rice to argue that Native Hawaiians could not be the beneficiaries of targeted programs, when clearly the case stands for a much narrower proposition having nothing to do with government benefits.
In fact, the Supreme Court declined to address Judge Kavanaugh's question of whether the Office of Hawaiian Affairs' voting structure could be an unconstitutional, race-based classification under the 14th Amendment.
In one email, when he was in the Bush White House, Kavanaugh wrote: ``I think the testimony needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.''
In another, he wrote: ``White House Counsel objects and raises questions about the constitutionality of this bill, including but not limited to the portions that refer to Native Hawaiians. See Rice v. Cayetano.''
At his hearing in front of the Judiciary Committee, when I asked him about his misapplication of the law, Judge Kavanaugh again misstated the holding of Rice and refused to correct his misstatement when I asked him to clarify. He testified before the Judiciary Committee that Rice ``was a straightforward violation of the 14th and 15th amendments of the U.S. Constitution.'' He was wrong, but when I pressed him on this point and asked him to show me where the majority decision in Rice cited the 14th amendment, he refused to answer. Why? Because he was clearly wrong.
It is deeply troubling to have a Supreme Court nominee for a lifetime position who doesn't adhere to facts or correctly present the law. Judge Kavanaugh's answers on this topic fit his pattern of evading and skirting the truth.
His reliance on these stereotypes and bigoted tropes about Native Hawaiians, as well as his misapplication of the law, represent a clear and present danger to Native people all over this country, including in Hawaii.
Notably, in his writings against Native Hawaiians, Judge Kavanaugh completely avoided any reference to the Alaska Native Claims Settlement Act, ANSCA. Under ANSCA, Alaska Natives organized themselves not as a tribe in Judge Kavanaugh's understanding of the word but as village and regional corporations with shares that individual Alaska Natives hold. This is a novel and unique system for facilitating the U.S. trust responsibilities and arguably not at all in keeping with what Judge Kavanaugh believes deserves constitutional protection. That is why Native communities across the country, including the Office of Hawaiian Affairs, Council for Native Hawaiian Advancement, Alaska Federation of Natives, and the National Congress of American Indians have come together to express deep concern over Judge Kavanaugh's nomination.
In the context of his views on Native peoples, I no longer find it curious that Judge Kavanaugh devoted so much time back then to writing an amicus brief and an op-ed on a case that involved Native Hawaiians.
I will have more to say tomorrow about other aspects of this nomination--in particular, what Dr. Christine Blasey Ford's account of her attack by Brett Kavanaugh reveals about the nominee, the Senate, and the American culture.
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