Dear Lisa, Alaska Natives were there for you. Be there for them. Vote NO. (A letter to Alaska Senator Lisa Murkowski)
Categories: Development of Indian Law
Well, this is it Lisa. The crossroads. Which way do you go? Do you vote yes for a man who is dogged by numerous allegations of sexual assault, has been less than honest with the Judiciary Committee, and clearly demonstrated that he is so intemperate as to be unfit for the Supreme Court? Or do you vote no and deal with aggressive repercussions from your party? We know that you and your staff have been pondering this, but we have also learned that you have made up your mind to vote YES, and that this deeply flawed FBI Investigation is what you plan to use for cover. We want to share this message: there is no cover.
First, let’s talk about how dangerous Kavanaugh is for the law. You attended a meeting of the Bering Sea Elders Group (a consortium of 39 Tribes that work together to protect the health and fisheries of the Bering Sea). They raised with you a number of concerns about his total misunderstanding of the Commerce Clause and how that could impact Alaska Natives and the laws that pertain to them. Your response was that you had spoken with him and he assured you that he would not negatively impact Alaska Native rights. Let’s be real. We’re lawyers, and we know full well that when we are standing in front of him arguing a case we cannot say “But you promised Senator Murkowski!” There is no cite for that. It’s meaningless. It’s just designed to get your vote and to calm us down. And, despite his assurances, his record says otherwise. (Of course, we would know more if he would produce the 93% of his documents that are still missing from the record. That alone should be reason enough for you to vote no.)
Second, let’s talk about those allegations. When a person raises their hand and makes a declaration under penalty of perjury, their words are transformed into evidence. We attach sworn statements to court briefings all the time, and all lawyers know this. You know this. So the rallying cry “there is no evidence!” is factually false. Dr. Ford’s testimony is evidence. What people must mean is “a woman’s word is not evidence, even when made under penalty of perjury.” But as the Bering Sea Elders said in their resolution last week, “a woman’s word is evidence,” and especially when made under penalty of perjury. That evidence deserves a full and fair investigation. What is the Committee afraid of?
Third, let’s talk about Kavanaugh himself. He also swore the allegations were not true. When there are conflicting statements, the trier-of-facts (the judge) looks for corroborating evidence and assesses the relative credibility of the witnesses. It would be great to get at any available corroborating evidence, but artificially limiting what is allowed in to the record sets up a scenario where the Committee refuses to let in evidence and then complains there is none.
With respect to relative credibility, Kavanaugh behaved in a manner absolutely befitting a Supreme Court Justice. Who can forget the time Justice Neil Gorsuch shouted “this is a con job put on by the Clintons!” when he was being questioned about the assault allegations against him by the Senate Judiciary Committee? Or the time Justice Sonia Sotomayor yelled “I love beer!” when under some intense questioning by the Committee? And we all remember where we were when Justice Elena Kagan asked Senator Grassley if he had ever been black-out drunk. Of course, this is nonsense. As lawyers, we know full well his conduct is outside the realm of what is acceptable. He showed no respect for the body convened before him and worse, he revealed an aggressive partisanship that would also disqualify him from consideration. For goodness sake, Robert Bork’s nomination fell apart because he said he reveled in the academic side of decision-making. Maybe times have changed, but know this: by voting to put Kavanaugh on the Supreme Court, you forever diminish it.
However, the Senate is not a trier-of-fact. Kavanaugh is not on trial. This hearing is akin to a job interview for a really, really plum job that you might not get if you dress the wrong way or make one inappropriate comment. You can vote no for any reason we have provided and for any of the reasons sent to you by thousands of Alaskans. You’re not deciding guilt. You know that. So why not go back to the stable and request another conservative nominee? What have you got to lose? Because sticking to this one presents a lot to lose—especially for you.
Is this nominee worth risking your career for? Because that is exactly what is at stake. The Alaska Native community, many tribes of which are our clients, have been unified in their opposition of him. As people surely often remind you, this is the same community who had wristbands with your name on them so they could remember how to spell it when they had to write it in. When your party abandoned you, they supported you and voted for you—because they believed you when you said you respected their views and would represent them. They had your back, and they want you to have theirs. They have said NO to Brett Kavanaugh. And you should too, because when election time comes, no one in the Alaska Native community will forget what you do.
NARF Senior Attorney
NARF Alaska Office