U.S. Supreme Court nominee judge Brett Kavanaugh looks on in the East Room of the White House in Washington, U.S., July 9, 2018. REUTERS/Leah Millis via PBS
Published September 19, 2018
With all due respect to Senator Sullivan, his Op-Ed statement that he talked with Kavinaugh who personally represented “that the legal rights of Alaska Natives are well-established by Congress and the court,” provide no reassurance for the Alaska Native community that if confirmed, he would uphold laws passed for the benefit of Alaska Natives. It is Kavinaugh’s judicial philosophy, and his record reflecting that philosophy, that should give people, including Alaska’s Senators, pause. Keep in mind that Kavanaugh was handpicked by a group of conservative lawyers called the Federalist Society, a hugely powerful, nationwide organization of conservative thinkers who believe in a strict, textual interpretation of the constitution of the United States. The idea of Originalism/Textualism is that the Constitution means no more or less than what it meant to those who originally wrote and ratified it. Yes, that’s right, originalist believe in adhering to the intent of the framers of the constitution. As wryly observed by Jill Abramson in the Guardian, “originalists believe they have a unique ability to divine the intent of white men whose outlook reflected 18th-century realities.” Originalism/Textualism is seen as a counter-approach to the “living Constitution” idea where the text is interpreted in light of current times, culture and society.
Kavanaugh’s philosophical embrace of originalism was on full display in an e:mail that he sent out on June 4, 2002 justifying a strict scrutiny approach to programs benefitting Hawaii’s first peoples — Native Hawaiians –on the basis that there is no reference to Native Hawaiians in the Commerce Clause in the United States Constitution.
Let’s break this down. The Commerce Clause provides that Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Art. 1, Sec 8, Clause 3. The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary authority over Indian affairs. And indeed, all of the body of federal Indian law has as its constitutional basis Congress’s invocation of the Indian Commerce Clause. But here’s the catch: the reach of the Commerce Clause has varied over time depending on Supreme Court interpretation.
In recent years a dispute has arisen within courts as to the range of powers granted to Congress by the Indian Commerce Clause. In addition, a strand of scholarship has challenged the long established principle that the Clause grants the federal government authority to the exclusion of the states, arguing that the Clause’s original understanding supports a far narrower scope of federal power and a broader role for states.
Drawing from the revisionist scholarship, in the 2013 Adoptive Couple v. Baby Girl decision, Justice Thomas challenged congressional authority to enact the statute at issue, the Indian Child Welfare Act. He opined that the Indian Commerce Clause only provides federal authority over Indian trade. Because most federal statutes concerning Indians lack a nexus to Justice Thomas’ definition of trade, they would be unlikely to survive the scrutiny he urges. The result would be a wholesale reshaping of the law that has governed Indian affairs for the past century and a half.
While Justice Thomas thus far is the only Justice to espouse this narrow view, if confirmed Kavanaugh’s record suggests that he may join Thomas in this interpretation of the Commerce Clause because Alaska Natives, like Native Hawaiians, are not specifically referenced in the Commerce Clause.
So, while it is correct that the legal rights of Alaska Natives are well-established by Congress and the court, there is no guarantee that Kavanaugh would vote to protect those rights. While publically Judge Kavanaugh acknowledged the rule of law and the importance of precedent, he has privately noted that precedent is easily overturned when five Justices choose to do so, and nearly every Supreme Court Term in recent memory bears witness to precedents being overruled simply because a slim majority of Justices chooses to do so.
Judge Kavanaugh’s embrace of originalism, generally and in the context of Native Hawaiians, should cause Alaska Natives to be deeply uneasy about the legacy that would be left by a Kavanaugh Court. Alaska’s Senators should just say no to his confirmation.
Heather Kendall-Miller is Denaina Athabaskan and is a tribal member of the Curyung of Dillingham, Alaska. She received her Bachelors degree from the University of Alaska-Fairbanks in 1988 and her J.D. from Harvard Law School in 1991. After clerking with Chief Justice Rabinowitz of the Alaska Supreme Court, Heather received a two-year Skadden Fellowship to work for Alaska Legal Services and the Native American Rights Fund in the area of Alaska Native Rights. Heather became staff attorney with the Native American Rights Fund in 1993 and practices exclusively in the area of tribal rights and subsistence. Her litigation experience is broad having argued before the United States Supreme Court and before the Ninth Circuit Court of Appeals en banc.