Lying About Brett Kavanaugh's Civil Rights Record
Over the coming days, foes of Brett Kavanaugh will attempt to portray him as hostile to civil rights. By now, these types of attacks have evolved into background noise, like the chirping of birds before sunrise. Whenever a conservative is nominated for anything, the chirping begins -- that thus and such nominee is hostile to civil rights, voting rights, minorities, and on and on.
The background noise has become so familiar, so tiresome, so worn out that you wonder why anyone bothers with it anymore.
And there you’d be mistaken. Chicken Little always sells papers. Or at least it sells copies of the New York Times, where headlines about Brett Kavanaugh become laugh lines. The New York Times published an op-ed by the permanently unhinged alarmist Ari Berman entitled: “Does Brett Kavanaugh Spell the End of Voting Rights?”
Most reasonable and sane Americans would answer the headline's question with “no, of course not.” Instead, Berman answers: “Yes! Panic!”
On the opening day of the hearing, the Democrats have relied on their favorite new tactic -- shutting up debate. That's why a series of objections to the hearing even starting were lodged by Democrats. Loud screams from Kavanaugh foes in the committee room audience have also disrupted the proceedings.
This week, you’ll also hear how Brett Kavanaugh committed the unpardonable civil rights sin -- he rejected the orthodoxy that voter ID laws are a plot to prevent minorities from voting. You might hear how Kavanaugh permitted South Carolina’s voter ID law to become effective. In particular, Kavanaugh noted in his well-reasoned opinion for a three-judge panel that anyone in South Carolina who was unable to procure the underlying documents to obtained voter ID could execute a hardship affidavit under oath and still cast a ballot.
Now you might ask what a federal judge was doing allowing a state election law to become effective in the first place. Before 2013, the federal government -- or a group of federal judges sitting in Washington, D.C. -- had to approve every election-related change in all or parts of sixteen states. These states weren’t just in the deep South. They included Michigan, South Dakota, and that hotbed of Jim Crow, New Hampshire. Eventually, the Supreme Court struck down the formula that grabbed these sixteen states and no others.
Kavanaugh critics never tell the full story about Kavanaugh’s South Carolina voter ID decision. They omit an important part -- the part where Kavanaugh refused to do what some were urging. South Carolina asked the court to trim the scope of the federal Voting Rights Act that required federal approval.
Invoking the constitutional avoidance doctrine, South Carolina has suggested that we should therefore construe the effects test of Section 5 of the Voting Rights Act more narrowly than the statutory text would indicate. But the text and Supreme Court precedent establish that the effects test of Section 5 is stringent and that a voting law change that disproportionately and materially burdens minority voters is unlawful. Any argument to narrow Section 5 in this way must be directed to Congress or to the Supreme Court.