With Supreme Court nominee Brett Kavanaugh’s Senate confirmation hearings set for September 4, conservatives and liberals are gearing up for a battle along partisan lines. One major American constituency – Hispanics, the country’s largest minority group – is divided over Kavanaugh’s nomination. According to a July Quinnipiac poll, 38 percent of Latinos believe he should not be confirmed, 37 percent believe he should be, and 25 percent say they don’t know. That one-quarter of Hispanics haven’t made up their minds suggest that they haven’t heard enough about Kavanaugh.
A close look at Kavanaugh’s record reveals a jurist who is out of sync with most Latinos on critical issues. From health care to immigration to voting rights, Kavanaugh has tended to favor the powerful over the powerless. Not only is his civil rights record lacking, his judicial philosophy is one that has been used to marginalize some Americans.
On immigration, three of Kavanaugh’s dissents are instructive in gauging how he might rule on the high court. In Garza v. Hargan (2017), Kavanaugh opposed allowing a pregnant undocumented minor to seek an abortion while she was in immigration detention. In Fogo de Chao v. DHS (2014), he agreed with the government that they had properly denied visas to Brazilian chefs with specialized skills, and in Agri Processor v. NLRB (2008) he wrote that undocumented workers were not covered by collective bargaining agreements. The through-line in these opinions is Kavanaugh ruling against the rights of immigrants. This should be troubling to many Latinos, given that the Supreme Court may hear cases challenging the constitutionality of DACA or family detention in the near future.
Kavanaugh’s dissent in Garza is important because he favored limiting a young woman’s right to choose. While Kavanaugh has not expressly revealed his views on Roe v. Wade, he was nominated by a president who as a candidate promised to install pro-life judges, and who said that Roe would guide his selection of judicial nominees. So Kavanaugh could provide the Court with a vote that would overturn Roe, endangering the health and safety of millions of Latinas. By contrast, a 2016 study by the National Latina Institute for Reproductive Health found that Latinos are “largely supportive” of women’s legal ability to have an abortion. Solid majorities of Latino voters believe that women should make their own decisions about abortion, and that abortion should remain legal.
On health care, as a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh dissented from a 2011 decision to uphold the constitutionality of the Affordable Care Act (ACA). He opined that a president could choose not to enforce the law’s individual mandate. He also dissented from another ruling that upheld the ACA’s birth control benefit. These opinions, taken with his Garza dissent, indicate that Kavanaugh could jeopardize Americans’ access to health insurance by striking down the ACA. That would hit Latinos hard, because under Obamacare, Latinos experienced the largest reduction in the uninsured rate of any ethnic group. In 2016, Latinos accounted for about one-third of the increase in adults with insurance. These gains could be at risk were Kavanaugh confirmed to the Court.
For Latinos, there are other red flags in Kavanaugh’s history as well. In 2012, he voted to uphold a South Carolina Voter ID law; such measures are often used in attempts to disenfranchise minority voters. He has shown little regard for claims of discrimination; in Ortiz-Diaz v. HUD (2017), though he acknowledged discrimination against a Hispanic employee, he nonetheless sided with the majority to dismiss the worker’s claims. In 1999, he submitted a brief to the Supreme Court on behalf of the Center for Equal Opportunity, a group that opposes affirmative action. No wonder that leading Latino advocacy groups, like the Hispanic Federation and LatinoJustice PRLDEF, are voicing their opposition to Kavanaugh’s nomination.
Some conservative Latinos express confidence in Kavanaugh because they see him as a nice person with good character. They note that he has mentored young women and hired diverse law clerks. However, “good character” is hardly the best recommendation for a justice who will sit on the Court for a lifetime, and hiring diverse employees is standard practice in the modern workplace. Besides, perfectly nice people can hold extreme views.
What should matter more to Latinos is Kavanaugh’s embrace of “originalism,” a legal philosophy brought into the mainstream by the late Justice Antonin Scalia. Originalism presumes to focus on the Constitution as envisioned by our Founders – a narrow interpretation that often leaves out the rights of women, LGBTQ people, and other minorities.
Our next Supreme Court justice must be an individual with the highest respect for the law, and with an inclusive view of civil and constitutional rights. Latinos – and all Americans – deserve better than Kavanaugh.
