'No reason for any further delay': Key Republican on Brett Kavanaugh

Wednesday, September 19, 2018

A top Republican appears ready to move forward with a contested hearing for U.S. Supreme Court nominee Brett Kavanaugh amid scrutiny over a sexual assault allegation and doubts about his Indian law record.

Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Committee on the Judiciary, scheduled the September 24 proceeding to take testimony from Judge Kavanaugh and from Dr. Christine Blasey Ford, a California professor who has accused the nominee of assaulting her when both were teens in the early 1980s.

But after Grassley made the announcement on Tuesday, attorneys for Ford indicated that she wants the FBI to investigate the incident, which is said to have taken place at a home in the suburban Washington, D.C., area, before she appears in a public setting.

"In the 36 hours since her name became public, Dr. Ford has received a stunning amount of support from her community and from fellow citizens across our country. At the same time, however, her worst fears have materialized," the attorneys wrote in a letter to the committee. "She has been the target of vicious harassment and even death threats. As a result of these kind of threats, her family was forced to relocate out of their home. Her email has been hacked, and she has been impersonated online."

Grassley, however, said he he saw "no reason" to wait for the FBI or for any other type of investigation. He intends to hold the hearing next week, even in Ford chooses not to testify before a committee composed almost entirely of men.

“The invitation for Monday still stands," Grassley said in a statement after receiving the attorneys' letter.

"Dr. Ford’s testimony would reflect her personal knowledge and memory of events," he continued. "Nothing the FBI or any other investigator does would have any bearing on what Dr. Ford tells the committee, so there is no reason for any further delay.”

Honored to address @NCAI1944—and to be joined by my friend @maziehirono. We spoke about the threat that Judge #Kavanaugh poses to Native communities. As @IndianCommittee Vice Chair, I'm committed to defending the rights of indigenous people—and I'm voting NO on #Kavanaugh. pic.twitter.com/osOwyFXOmY
— Tom Udall (@SenatorTomUdall) September 12, 2018

Grassley had originally scheduled a vote on Kavanaugh's nomination on Thursday, a key step before the judge can be considered by the full Senate. But the executive business meeting was cancelled in light the allegation, which upended the already controversial confirmation process.

Before the allegation became public, Alaska Native leaders began raising alarms about Kavanaugh. In an opinion published on Indianz.Com last week, President Richard (Chalyee Éesh) Peterson of the Tlingit and Haida Tribes called the nominee a threat to tribal sovereignty.

"I do not speak on behalf of all Alaska Native tribes, but I know that our tribal values do not align with Kavanaugh’s judicial views," Peterson wrote. "His lifetime appointment to the Supreme Court would bring destruction to the rights and way of life we have long fought for as Tribes, as Alaska Native peoples, and Alaskans, and as Americans. "

Two days later, an organization that represents almost every tribe and almost every Native corporation in the state joined the fight. The Alaska Federation of Natives called out Kavanaugh for his "misguided" views on the federal trust relationship, as well as the unique legal and political status of the first Americans.

"Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination," AFN said in a September 12 statement.

These are the docs Rs don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form. pic.twitter.com/yj31vDNGia
— Senator Mazie Hirono (@maziehirono) September 6, 2018

The concerns come as Indian Country prepares for another busy season at the U.S. Supreme Court. Three cases from the lower 48 states are currently on the docket, affecting treaties, taxation and reservation boundaries. A fourth case, known as Sturgeon v. Frost, impacts Native subsistence rights in Alaska.

"The lineup of the court is the most consequential in recent history. And the next justice has the potential to shape Indian law for decades to come," Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said last week as the National Congress of American Indians held its Tribal Impact Unity Days event in Washington, D.C.

Kavanaugh has served on the D.C. Circuit Court of Appeals for a decade but he has only participated in a handful of Indian law cases. And of the cases where significant tribal issues were at stake, he wrote just one majority opinion and one concurring opinion.

In hopes of shedding more light on the high court nominee's understanding of the first Americans, Udall asked the Senate Committee on the Judiciary to request any records related to Kavanaugh's work on Native issues during the George W. Bush administration. Though his request was not carried out, some documents came to light during the four days of confirmation hearings earlier this month.

One critical piece of information was shared by Sen. Mazie Hirono (D-Hawaii), who is one of only four women on the Judiciary panel, all Democrats. It showed that Kavanaugh, from his perch as an attorney the White House, urged the then-Republican administration to treat Native Hawaiian programs as ones based on race.

“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,” Kavanaugh wrote in a 2002 email.

Sen. Mazie Hirono on YouTube: Senator Hirono Presses Judge Kavanaugh on False Views on Native Hawaiians

Shortly before he started working at the White House, Kavanaugh was advancing similar views. He participated in a Supreme Court case, known as Rice v. Cayetano, in which he argued that Native Hawaiians should not be treated as a political entity even though their government had been illegally overthrown by non-Native interests in 1893 with the support of the United States. He expanded on his thinking in the conservative opinion pages of The Wall Street Journal, casting doubts on the federal trust responsibility.

Under questioning by Hirono, however, Kavanaugh refused to elaborate on his prior thinking about indigenous affairs, instead promising to keep an "open mind" were a case to come before him on the Supreme Court.

"I think Congress' power, with respect to an issue like that, is substantial," Kavanaugh said on September 5. "I don't want to pre-commit to any particular program, but I understand that Congress has substantial power with respect to declaring, recognizing tribes."

The lack of clarity has Alaska Natives worried. Though Alaska and Hawaii are separated by thousands of miles, the indigenous communities in both states have long been bound by mutual concerns -- and attacks -- on their legal and political status. AFN has called on Congress to clear up any doubts by extending the policy of self-determination to Native Hawaiians.

"If he remains of the view that the special trust relationship only extends to Indian tribes with his brand of federal history, including territorial removal and isolation, he could very well rule that Congress lacks the authority to deal with Alaska Natives," AFN said in its statement about Kavanaugh.

With Monday's hearing apparently on track, Republican leaders are still hoping to take action on Kavanaugh before the Supreme Court opens its next session on October 1. The court is currently down to eight justices, following the retirement of Anthony Kennedy this summer.

"The Supreme Court is one of the main reasons I got elected President. I hope Republican Voters, and others, are watching, and studying, the Democrats Playbook," President Donald Trump wrote in a post on Twitter on Tuesday night.

Trump's first Supreme Court nominee was Neil Gorsuch, who was eagerly embraced by Indian Country due to his strong background in Indian law. He joined the court in April 2017.

The president stayed silent on the sexual assault allegations against his new pick up until Wednesday. Speaking to reporters on the lawn at the White House, he said he wanted to hear from Dr. Ford before making up his mind about her claims.

But he also said Kavanaugh was the victim of mistreatment in the Senate. “I think it’s a very unfair thing what’s going on,” Trump told reporters.