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by on September 5, 2018
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Supreme Court nominee recruited black law clerks and lamented racism, yet helped develop arguments against affirmative action.

Brett Kavanaugh, bottom right, and fellow Yale Law School classmates reunite in Maryland in 1992. ‘You can tell a lot about somebody playing basketball with them, and seeing how they interact with people,’ said Ken Christmas, top left.

Assigned in early 2001 to help remake the federal bench with fresh conservative faces, Brett Kavanaugh, then an associate counsel to President George W. Bush, sought out minority candidates to produce a slate the White House could tout for racial and gender diversity.

The result: Of 11 judicial nominees the president introduced in May 2001, six were minorities or women.

Two years later, Judge Kavanaugh had a different task, one the future Supreme Court nominee pursued with equal zeal: to coordinate the administration’s opposition to affirmative action in cases challenging race-conscious admissions policies at the University of Michigan.

By a 5-4 ruling the high court ultimately rejected the administration’s position, upholding the Michigan law school’s use of race as a “plus” factor within a holistic process to promote classroom diversity.

Judge Kavanaugh said he didn’t find the two assignments inconsistent.

“I continue to see no contradiction,” he wrote in March 2003 to a journalist questioning how the White House could boast about minority judicial nominees while fighting affirmative action. “Diversity is a permissible goal but a state must use race-neutral criteria when available,” he added. The email is among the documents provided by Mr. Bush’s attorney to the Senate Judiciary Committee.

President George W. Bush with 11 nominees for the federal judiciary in May 2001. Brett Kavanaugh, then an associate counsel to Mr. Bush, sought minority candidates for the slate, which ended up with six who were minorities or women.

Throughout Judge Kavanaugh’s career, people close to him say he has lamented the systemic disabilities racism has inflicted upon African-Americans, yet has been dubious that the Constitution permits aggressive government intervention in response.

He has criticized “special legislation” for minorities and, in a 1999 interview, said he looked forward to the “inevitable” day in 10 or 20 years when, he predicted, the Supreme Court “says we are all one race in the eyes of the government.”

But as a student at Yale Law School, Judge Kavanaugh wrote a law review article recommending procedures to counter the “conscious or unconscious racism” of prosecutors and judges during jury selection. And as a judge, he has built relationships with black student groups at the Yale and Harvard law schools and taken pride in recruiting their members for clerkships.

Where Chief Justice Roberts saw so much progress in race relations that in 2013 he declared tough enforcement provisions in the Voting Rights Act of 1965 no longer were justifiable, a year earlier Judge Kavanaugh had used an elections case to make a different point.

“Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States,” he wrote. “The long march for equality for African-Americans is not finished.”

That came from a unanimous decision temporarily blocking a South Carolina voter identification law. In a concurring opinion, the two other judges said the case “demonstrates the continuing utility of Section 5 of the Voting Rights Act”—the provision Chief Justice Roberts’s opinion would mothball a year later—in countering discriminatory election laws. Judge Kavanaugh declined to join that concurrence.

As an appellate judge who heard relatively few civil rights cases, it is unclear how those views would add up in Judge Kavanaugh’s jurisprudence if he is confirmed to the Supreme Court.

But it may not take long to find out. The justices regularly face racially-charged cases, on issues from bias in criminal trials to workplace discrimination. New challenges to affirmative action—including a suit against Harvard College’s admission policy, backed by the Trump administration—already are in the pipeline. Race-conscious college admissions survived its last test two years ago—by one vote, cast by Justice Anthony Kennedy, whose seat Judge Kavanaugh would take.

Civil-rights organizations doubt Judge Kavanaugh’s receptivity to their arguments. Several oppose his confirmation, including the NAACP Legal Defense Fund and the Lawyers’ Committee for Civil Rights Under Law.

The Senate Judiciary Committee’s top Democrat, Sen. Dianne Feinstein of California, shares those concerns. “While only a small portion of documents related to Brett Kavanaugh’s beliefs about race and diversity have been provided, even those few documents indicate he believes the Constitution does not allow efforts to remedy the effects of racial discrimination,” she said.

Supreme Court nominee Brett Kavanaugh, center, spoke at a panel hosted by the Harvard Black Law Students Association this past spring. He has a history of recruiting African-American law clerks.

Judge Kavanaugh, currently serving on the U.S. Court of Appeals for the District of Columbia Circuit, made race-consciousness part of his narrative when President Trump announced the nomination in July.

His mother, Martha Kavanaugh, retired after serving as a state judge in Rockville, Md. But “in the 1960s and ’70s, she taught history at two largely African-American public high schools in Washington, D.C….Her example taught me the importance of equality for all Americans,” Judge Kavanaugh said.

In a 2013 D.C. Circuit case, Judge Kavanaugh joined an unsigned opinion reinstating an African-American’s employment discrimination claim. Judge Kavanaugh also filed a separate opinion, one he listed on a Senate questionnaire as among his most significant, stressing that one of the allegations, that a supervisor told the employee, “Get out of my office, n—,” was enough to justify a lawsuit.

“No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans,” Judge Kavanaugh wrote. In addition to court opinions, he cited for authority Langston Hughes’s autobiography, “The Big Sea,” and the television miniseries “Roots.”

Asked about that case during recent meetings with senators, people familiar with the matter said, the 53-year-old judge cited a scene from the show where Kunta Kinte is whipped until he accepts his slave name, Toby. The scene ends with the overseer’s casual use of the N-word.

Another work he cited in that opinion, Harper Lee’s “To Kill a Mockingbird,” remains in his chambers, including brief notes he wrote on the back of the cover in seventh grade: the words “racial equality,” “justice” and—with a line through it—“prejudice.”

People familiar with the matter say that in meetings with senators, Judge Kavanaugh has said he is reminded of persistent racial inequality on his commute from Chevy Chase, Md., to his courthouse in downtown Washington.

One route, along Connecticut Avenue, goes through prosperous, largely white neighborhoods west of Rock Creek Park. The other way, down North Capitol Street, takes him through more struggling areas where, due to redlining and other discriminatory practices, blacks historically have lived.

Kenneth Christmas, an entertainment executive in Los Angeles, says he isn’t surprised Judge Kavanaugh made such remarks. The two met as law students 30 years ago, at a pickup basketball game.

“You can tell a lot about somebody playing basketball with them, and seeing how they interact with people,” says Mr. Christmas, who is black.

Judge Kavanaugh had played basketball for years, in camps and leagues that immersed him in a sport dominated by African-Americans. “He can be the only white guy there and be treated like another brother,” Mr. Christmas said. The two later roomed together as part of an eight-man group that has held regular reunions in the years since.

Former White House counsel Alberto Gonzales said that in early 2001, President Bush complained there weren’t enough women and minorities among the first list of potential judicial nominees his staff prepared. “We need to have more diversity in the names you bring me,” Mr. Gonzales recalled Mr. Bush saying. “Brett would have heard that.”

Mr. Gonzales said he later assigned Judge Kavanaugh to soften the argument against affirmative action the Justice Department wanted to file in the Michigan cases.

“The Department of Justice wanted to file a brief that was much tougher than the president wanted to go,” said Mr. Gonzales, who later served as attorney general. The final brief described diversity as a “laudable” goal but said it must be obtained through race-neutral methods.

In a 2003 internal email, Judge Kavanaugh cautioned that White House talking points on the Michigan case shouldn’t suggest the administration “embraced diversity as a compelling governmental interest.”

On the D.C. Circuit, Judge Kavanaugh has made diversity part of his own agenda. One of his law clerks had, before going to law school, taught at an underprivileged public school. She said Judge Kavanaugh focused on that experience during her job interview, and later contacted her with an unusual request: He wanted to meet with Yale’s Black Law Students Association to encourage members to apply for judicial clerkships.

“I had never heard of a nonminority judge affirmatively reaching out like that to one of the diversity groups or to BLSA,” the clerk said.

People who have spoken with Judge Kavanaugh say he took that step after seeing justices challenged at House committee hearings over how few minorities served as Supreme Court law clerks.

Justice Clarence Thomas pointed the finger at appeals courts like the D.C. Circuit, from which nearly all high court clerks come. Within that pool, he said, “the reality is that it is the Hispanics and blacks who do not show up in any great numbers.”

Starting in 2013, Judge Kavanaugh began meeting annually with African-American students at Yale. He later added a visit with the Black Law Student Association at Harvard Law School, where he regularly teaches.

“I don’t know why any potential Republican nominee would see a reason to hire diverse clerks,” said Rakim Brooks, who as a Yale student attended the 2014 meeting and later clerked for Judge Kavanaugh. “Justice [Samuel] Alito and Chief Justice Roberts managed to make it onto the Supreme Court without being very much concerned with this.”

By Jess Bravin

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