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Senator Mazie Hirono (D,HI) vs. Supreme Court nominee Brett Kavanaugh re Hawaiian racial entitlement programs and converting a racial group into a federally recognized tribe

by Kenneth R. Conklin, Ph.D.

On Wednesday September 5, 2018 Senator Mazie Hirono (D, HI) was scheduled to have a half hour late in the afternoon (she has low seniority) to question Supreme Court nominee Brett Kavanaugh in the Judiciary committee confirmation hearing. Reporter Nick Grube was given information from Senator Hirono regarding the topics she intended to raise, and Grube's article leaking that information was published in Honolulu Civil Beat [online newspaper] very early in the morning.

Hirono is up for re-election this November, so of course she is grandstanding and this left-leaning online newspaper is happy to help her. The article, entitled "Brett Kavanaugh No Friend Of Special Rights For Native Hawaiians -- Trump's Supreme Court nominee once called the Office of Hawaiian Affairs a "naked racial spoils system." is at

Hirono's entire 31 minute performance in the Wednesday committee hearing was later posted by her minions on YouTube at
The portion devoted to Hawaiian racial entitlements, tribalism, and Rice v. Cayetano is in minutes #9:05 to 17:30 (the first 9 minutes were spent trying to embarrass Kavanaugh by asking whether he had ever sexually harassed women, and blaming him for failing to report 9th Circuit Judge Alex Kozinsky for doing so).

Brett Kavanaugh's Wall Street Journal commentary: "Are Hawaiians Indians? The Justice Department Thinks So." Wall St. J., Sept. 27, 1999, page A35 as archived by the online daily Indian compilation at "Turtle Talk" is at

What's this about "the justice department thinks so"? Remember that in 1999 Bill Clinton was at the end of his Presidency, and was sending high-level representatives from his Department of Justice and Department of Interior to hold "reconciliation" hearings in Hawaii, asking ethnic Hawaiians what goodies they would like from the federal government as part of the "reconciliation" called for in the apology resolution of 1993 (at the beginning of his Presidency). This was Clinton's way of gearing up for the expected ruling in Rice v. Cayetano, which came in February 2000, and gearing up for introduction of the Akaka bill in the House and Senate in July 2000 as a way to overrule the Supreme Court.

Brett Kavanaugh, Robert Bork, and Roger Clegg jointly wrote an amicus brief in Rice v. Cayetano which was very influential in producing the 7-2 decision abolishing the portion of Hawaii's Constitution that mandated racial segregation in Hawaii's election of OHA trustees. Kavanaugh was the counsel of record. Everyone old enough will remember how Robert Bork got borked at his confirmation hearing for Supreme Court. Roger Clegg is now President and General Counsel of the Center for Equal Opportunity, where he worked for many years under the leadership of Linda Chavez; Clegg was helpful for many years in fighting the Akaka bill and Hawaii's plethora of racial entitlement programs. The brief is very lengthy, filled with citations, and well-argued as you would expect from a nominee for Supreme Court. It's available on findlaw, the free version of Lexis-Nexus, at

Both of Judge Kavanaugh's essays should be read by all the people of Hawaii, because they are powerful arguments against "Native Hawaiian" racial entitlement programs and the now-20-year effort to create a federally recognized Hawaiian tribe whose size could potentially now be 600,000 (one drop of the magic blood is enough to belong). The whole purpose of converting a racial group into an Indian tribe is to provide a legal basis for about a thousand currently existing racial entitlement programs to survive legal challenges under the 14th Amendment equal protection clause, and to increase this racial group's political power and give them ownership of lands and corporations. Judge Kavanaugh's essays are strong medicine against dividing the lands and people of Hawaii along racial lines. For a compilation of many Hawaiian racial entitlement programs, see

Here is a compilation of all major articles opposing the Akaka bill (to create a Hawaiian tribe) which I updated continuously from year 2000 through 2014: The front page is an index broken into time periods; full text of each article is available in the subpages for the several time periods.

Hawaii Free Press, September 6, 2018

Hirono: Kavanaugh 'Critical' 8th Vote in Rice v Cayetano

By Andrew Walden

In 1995 the corrupt "Broken Trust" trustees of Kamehameha Schools commissioned ex-Governor John Waihee to investigate relocating KSBE's legal domicile outside Hawaii. His recommendation: Relocate to the Cheyenne River Sioux Indian Reservation. The advantage? Cheyenne River is the most "sovereign" of all the Indian reservations. It has its own tribal police force, judiciary, legislature and presidency. It has "government to government" relations with the US and is not subject to any state and many federal laws. Attorney General Margery Bronster explained: "They were into empire building instead of working for the education of Hawaiian children."

The first version of the Akaka Bill was introduced to Congress six months after the Bishop Estate Trustees were forced to resign. Why move to a mainland Indian Reservation when OHA can build a "Hawaiian" Indian Reservation?

Fast-forward to 2018.

It has been years since anyone in Congress has introduced any version of the Akaka Bill. But the Broken Trust effort to turn native Hawaiians into a fake Indian tribe in order to create a legal jurisdiction behind which the legions of criminals in Hawaii's political class could then conduct their illegal activities without fear of prosecution is suddenly and momentarily front-and-center as Hawaii Senator Mazie Hirono and California Senator Kamala Harris flail away at President Donald J Trump's latest Supreme Court nominee.

Will Justice Brett Kavanaugh become the 'critical' 8th vote against racially discriminatory OHA elections? Even worse -- could Kavanaugh become the 'decisive' 10th vote against the Hawaii Supreme Court's Ceded Lands Decision. Or maybe Hirono is afraid Kavanaugh will be the fifth vote against Nai Aupuni.

Here is the play-by-play from US Senate hearings on the Kavanaugh nomination, Wednesday, September 5, 2018:

Sen. Mazie Hirono Launches Into Kavanaugh Witch Hunt Over MeToo, Hawaii, and Leftist 'Studies'

PJ Media: ... the senator then proceeded to discuss an 18-year-old Supreme Court case in which Kavanaugh wrote an amicus brief (and a Wall Street Journal op-ed), Rice v. Cayetano (2000). After three minutes of parsing each of Kavanaugh's arguments and attacking them as deeply offensive, Hirono asked him an oddly specific question about an email in 2002.

During Hirono's diatribe, Kavanaugh attempted to get a word in edgewise. As the senator declared, "Let me tell you why each of these assertions are wrong," he responded, "The Supreme Court agreed, 7 to 2." Hirono continued, and at one point she paused.

"May I respond to that?" Kavanaugh asked. "Let me get to my question," the senator shot back.

Finally, after her pontificating speech about how Kavanaugh is such an offensive and disgusting person, Hirono asked about a specific email.

The judge responded, "So Senator, first of all, I appreciate your perspective. The amicus brief I wrote, the Supreme Court agreed with it, by a 7-2 decision written by Justice Kennedy."

"In the case, just so I'm clear, it was a state office that denied African Americans the ability to vote in that state office. Latinos and other people were denied the ability to vote for a state office, and the question was whether that was permissible under the Constitution, and the Supreme Court by a 7 to 2 majority..." Kavanaugh began.

Hirono then cut him off once again. "I attended that Supreme Court hearing, and I believe that one of the reasons they kept asking, trying to figure out whether native Hawaiians constitute tribes is probably because of the amicus that you put in there," she said. Indeed, Kavanaugh argued that native Hawaiians did not constitute Native American tribes under federal law. But this argument came up 18 years ago, and the Supreme Court agreed with him.

Then, laughably, the senator attacked the nominee, saying, "You didn't answer my question." Perhaps because she didn't let him?

At last, Kavanaugh was able to address the email, which was technically Hirono's "question." "That's an email 16 years ago. I don't recall what I was thinking about," he said.

Finally, Hirono got to the crux of the issue. She asked Kavanaugh if he thought Rice v. Cayetano "raises constitutional questions when Congress passes laws to benefit native Hawaiians." Only this issue would have any bearing on the nominee's Supreme Court jurisprudence.

Kavanaugh gave a clear and succinct answer. "I think Congress's power when it come to an issue like that is substantial," he said. "Congress has substantial power with respect to programs like this. The specific case was about election to a state office."

Even so, Hirono pressured him further on the question. She commented, "One would hope that the advocates would actually proffer facts to the court, and that is not what you did when you filed your amicus to the court." Then she proceeded to comment that the nominee's "argument raises a significant question about how you would rule on the constitutionality of programs benefitting Alaska Natives."...

(Translation: This is a long-winded attempt to flip the two Alaska Senators' votes against Kavanaugh by conflating the federal recognition of tribal native Alaskan communities with non-tribal native Hawaiians.)

read ... Sen. Mazie Hirono Launches Into Kavanaugh Witch Hunt Over MeToo, Hawaii, and Leftist 'Studies'


Kamala Harris: Rice v Cayetano a White Supremacist Dog

PJ:Media ...turned to her other white supremacist witch hunt topic. "Have you ever heard the term 'racial spoils system'?" she asked.

After the nominee admitted that he had, Harris pointed to his Wall Street Journalop-ed explaining his amicus brief in the Supreme Court case Rice v. Cayetano (2000). In that op-ed, Kavanaugh used the term "racial spoils system" twice. Harris asked what the term "racial spoils system" means to the nominee.

"I'm not sure what I was referring to then. But what I do know is that the Supreme Court, on a 7-2 margin..." agreed with his position.

Harris again cut him off. "Are you aware that the term is commonly used by white supremacists?" she asked.

"Senator, when I wrote that, that was 20 years ago, in the context of a voting restriction that denied African-Americans and Latinos the ability to vote in Hawaii, I was representing a client when I articulated that," Kavanaugh responded.

Harris went on to call "racial spoils system" a "loaded term," essentially a dog whistle for white supremacy….

read ... Kamala Harris Harasses Kavanaugh on Robert Mueller, Charlottesville, 'White Supremacist' Terms

Honolulu Star-Advertiser, September 7, 2018

Hirono releases confidential Kavanaugh email critical of Native Hawaiian programs

By Sophie Cocke

Amid the political fracas that has engulfed the Supreme Court confirmation hearings of Brett Kava­naugh, protections for Native Hawaiians have been thrust into the spotlight.

On Thursday, U.S. Sen. Mazie Hirono released a confidential email that Kavanaugh wrote during his time serving in President George W. Bush's administration questioning protections for federal programs serving Native Hawaiians.

Any "program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution," Kavanaugh wrote in the 2002 email advising the Treasury Department on upcoming testimony related to capital investment in "Indian country."

The email was deemed confidential by Republicans on the Senate Judiciary Committee. Hirono questioned Kavanaugh about the email Wednesday and publicly released the document the next morning in violation of Senate rules.

"These are the docs R(epublicans) don't want you to see -- because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable," Hirono tweeted with the document attached. "I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form."

Hirono and her Democratic colleagues on the Senate Judiciary Committee have been hammering Republicans over the concealment of tens of thousands of documents relating to Kavanaugh from public view. Sen. Cory Booker (D-N.J.) has also been releasing confidential documents, and Republican members of the committee appear to be scrambling to clear them for release to deflate the controversy.

Releasing confidential documents, and possibly discussing them during hearings, runs afoul of Senate rules, and Hirono and Booker could potentially face expulsion from the Senate or the Judiciary Committee. However, it's rare that such action is taken, and it would require an unlikely two-thirds vote from the full Senate.

An hour before Hirono released the email from Kavanaugh, she tweeted, "If you're coming after @SenBooker for releasing these documents, count me in."

'Hawaii's naked racial-spoils system'

The Kavanaugh email is part of a larger body of writings by Trump's Supreme Court nominee on the subject of Native Hawaiians that Hirono seized on in her questioning of Kavanaugh and that have alarmed local Native Hawaiian leaders.

As an attorney in private practice, Kavanaugh joined with conservative attorney Robert Bork in filing a 1999 brief with the Supreme Court arguing in the case Rice v. Cayetano that it's unconstitutional to bar non- Native Hawaiians from voting for trustees for the Office of Hawaiian Affairs. Kavanaugh expanded on his views on OHA in a 1999 op-ed published by the Wall Street Journal.

"The Aloha state has two classes of citizens: there are Hawaiians and then there are real Hawaiians," wrote Kavanaugh. "At least that is the message of the state Office of Hawaiian Affairs, which doles out money to certain citizens solely because of their race -- in this case, only to Hawaiians of Polynesian origin ('native Hawaiians,' for short)."

Kavanaugh went on to refer to OHA as a "naked racial-spoils system" that "makes remedial set-asides and hiring and admissions preferences look almost trivial by comparison."

He also opined on whether Native Hawaiians represent an indigenous group afforded certain federal protections, or a racial group.

Kavanaugh wrote that Native Hawaiians "couldn't possibly qualify" for federal indigenous status. "They don't have their own government. They don't have their own system of laws. They don't have their own elected leaders. They don't live on reservations or in territorial enclaves," he wrote. "They don't even live together in Hawaii. Native Hawaiians are dispersed throughout the state of Hawaii and the United States."

Hirono, who read the quote during hearings, told Kavanaugh, "It's hard to know what to say to this assertion. It sounds like you are saying native groups in the United States derive their rights from having been herded into reservations and cheated out of their land, or that they surrender their rights when they move outside of these artificial boundaries. It is not only factually wrong, but also very offensive."

Kavanaugh went on to write, "After all, Hawaiians originally came from Polynesia, yet the (Justice Department) calls them 'indig­enous,' so why not the same for groups from Africa or Europe? It essentially means that any racial group with creative reasoning can qualify as an Indian tribe."

Hirono noted that Hawaii is part of Polynesia.

The Supreme Court ultimately ruled that non-Native Hawaiians couldn't be barred from voting in a state election for OHA trustees, based on the 15th Amendment. But the court punted on whether the equal protection clause of the 14th Amendment applied, which Kavanaugh had argued it did. If the Supreme Court were to rule that the 14th Amendment applied in a similar case, it could set precedent for unraveling programs that serve Native Hawaiians and other ethnic groups.

Native Hawaiians could be vulnerable because they lack their own federally recognized government.

"Should Kavanaugh be confirmed, all Native Hawaiians should be worried that should a case on the 14th Amendment reach the U.S. Supreme Court under the current makeup that we risk the existence of our federal and state programs benefiting Native Hawaiians," said Esther Kiaaina, a former assistant secretary for insular areas for the U.S. Department of the Interior under the Obama administration and a candidate for OHA.

She said OHA; the Department of Hawaiian Home Lands; the Native Hawaiian Healthcare Act; the Native Hawaiian Education Act, which provides more than $30 million; and many more programs serving Native Hawaiians could potentially be at risk.

Moses Haia, executive director of the Native Hawaiian Legal Corp., agreed with Kiaaina's take on the legal risks for Native Hawaiian programs. He added that views like Kavanaugh's reflect a lack of understanding about this country's history.

"A true understanding of history should bring one to the understanding of why there are efforts to bring some sort of restorative justice back for Native Hawaiians," said Haia.


** Ken Conklin's online comment:

The best thing about Mazie's 31-minute rant against Kavanaugh in Wednesday's confirmation hearing, and her release of the 1-page memo, is that the public has now become aware of very strong medicine against Hawaiian racial entitlement programs and the concept of a Hawaiian tribe.

It's sad that this newspaper has utterly failed to make available the two very important documents written by Judge Kavanaugh, which were the focus of Mazie's rant. And indeed, this newspaper has failed to let readers see the 31-minute video of Mazie's rant which Mazie was so pleased with that she had her minions publish the video on YouTube.

I have done this newspaper's work for it, by making those things easily available. Please enjoy laughing at Mazie's ridiculous performance by watching the video. But more importantly, please read Judge Kavanaugh's two items from 1999: a very detailed, heavily footnoted amicus brief he wrote for the Supreme Court's case Rice v. Cayetano, and the short commentary he wrote in the Wall Street Journal.

Because this newspaper does not allow internet URLs in online comments, I must provide clues for readers to assemble the URL. Go to

tinyurl dot com slash yaax77fq

Hirono, Haia, Kiaaina, and other racialist partisans think the reasoning provided by Kavanaugh is so despicable that merely displaying it will cause revulsion. But I think Kavanaugh's reasoning is powerful and important for Hawaii's people to read, and it's mostly censored by Hawaii's media. Powerful medicine to help cure us from disastrous policies.


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