Hirono calls Supreme Court nominee's views on Hawaiians 'offensive'

Hirono calls Supreme Court nominee's views on Hawaiians 'offensive'
Published: Sep. 5, 2018 at 9:25 PM HST|Updated: Sep. 6, 2018 at 1:32 PM HST
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WASHINGTON D.C. (HawaiiNewsNow) - U.S. Sen. Mazie Hirono released "committee confidential" documents Thursday in which U.S. Supreme Court nominee Brett Kavanaugh questions the constitutionality of Native Hawaiian programs.

New Jersey Sen. Cory Booker also released confidential emails in which Kavanaugh addressed the issue of race while serving in the Bush administration.

Both of the releases were against Senate rules and come amid confirmation hearings for Kavanaugh, who's been widely scrutinized by Democrats. Judiciary Committee Chairman Chuck Grassley said after the releases that the documents had been cleared and were not actually confidential.

But Hirono told CNN's Wolf Blitzer that Grassley's stance was a "perfect example of after-the-fact trying to cover their, as we say in Hawaii, 'okoles.'"

She added, "You know the process as laid out by the chairman is that we had to clear documents that we had intended to use. I did not request that this document be cleared.The fact of the matter is that they don't want to be confronted with an idea of having to expel some of us because they cannot justify why these documents should have been confidential in the first place."

The document Hirono released was an email Kavanaugh wrote in 2002, in which he responded to a question about whether Congress should treat Native Hawaiians as it would a Native American tribe.

"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," he wrote.

Hirono has said Kavanaugh's conclusions on Native Hawaiians are "factually wrong" and incredibly offensive.

The release came a day after Hirono took Kavanaugh to task about his views on Native Hawaiians, criticizing him for writing in 1999 that he didn't believe the group was indigenous because they traveled to the islands from deeper in Polynesia.

Members of the Senate Judiciary Committee each had 30 minutes to ask Kavanaugh questions. And when Hirono had the microphone, she sought to better understand Kavanaugh's opinions on the rights Native Hawaiians are entitled to.

At issue during the hearing: A 1999 op-ed Kavanaugh wrote for the Wall Street Journal, titled "Are Hawaiians Indians? The Justice Department thinks so." In it, Kavanaugh discussed his opposition to the Office of Hawaiian Affairs, saying it sets a precedent for states to exclude voters from elections based on race.

The piece was written in response to the Supreme Court case Rice v. Cayetano, in which the Supreme Court ruled that excluding voters because they are not Hawaiian violated the 14th and 15th amendments.

Here's a part exchange on Wednesday between Hirono and Kavanaugh during the hearing:

Hirono: In the piece you wrote, the Native Hawaiian community was not indigenous because, as you say, after all, they came from Polynesia. It might interest you to know that Hawaii is part of Polynesia so it's not that they came from Polynesia, they were a part of Polynesia. ... You also implied that Native Hawaiians couldn't qualify as an Indian tribe and therefore were not entitled to constitutional protections given to indigenous Americans (cont.). 

Hirono: It is hard to believe you spent any time researching the history of Native Hawaiians. 

Hirono also referenced an email Kavanaugh sent in 2002 saying, "Any programs targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable volatility under the constitution."

Hirono: Do you think Rice v. Cayetano raises constitutional questions when Congress passes laws to benefit Native Hawaiians? 

Kavanaugh: I think Congress' power, with respect to an issue like that, is substantial. 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. 

Hirono: But you believe that any of these kinds of programs or laws passed by Congress should undergo strict scrutiny and raises constitutional questions? 

Kavanaugh: As I sit here today as a judge, I would listen to arguments 16 years ago ... but if I were a judge, I would listen to the arguments to your question, Congress has substantial power with respect to programs like this. I appreciate what you've said about Native Hawaiians ...

Kavanaugh: I think Congress has substantial power of course in this area that you're discussing and I would want to hear more about how Rice applies. I would want to hear the arguments on both sides. I would keep an open mind and appreciate your perspective on this question. ...

Hirono: I think you have a problem here. Your view is that Hawaiians don't deserve protections as indigenous people under the constitution and your argument raises a serious question on how you would vote on the constitutionality of programs benefiting Alaska natives. I think that my colleagues from Alaska should be deeply troubled by your views. 

The second round of confirmation hearings are set for Thursday.

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