Eventually, the increasingly fraught Supreme Court nomination process for Brett Kavanaugh will come down to a vote in the Senate where the close split between Democrats and Republicans means that the Republicans have very few votes to spare. Among the Republican Senators who have come under close scrutiny for the possibility that they might vote against Kavanaugh is Senator Lisa Murkowski (R-Alaska). Murkowski is one of only five women Republican Senators and someone who, in voting against the Republican plan to replace Obamacare last year, has already shown an independent streak.
We often think of Supreme Court nominations focusing on broad, national-level issues, but those who vote to confirm federal judges must still answer to a local constituency: their state’s voters. In other words, it’s not just the fate of Roe v. Wade or the drive for Republican unity leading up to the midterms that are putting pressure on Senator Murkowski. The Kavanaugh nomination has brought to the fore another issue, one that might not ordinarily motivate elected officials but disproportionately impacts Alaska Natives and Native Americans: the prevalence of sexual violence against women.
According to the National Intimate Partner and Sexual Violence Survey (NISVS), just over one-third of women (36.3 percent) in the U.S. report experiencing contact sexual violence[i] in their lifetime. About one-fifth (19.1 percent) report experiencing rape or attempted rape. For Native American and Alaska Native women, the numbers are much higher: nearly half (45.6 percent) experience contact sexual violence, and 28.9 percent experience rape or attempted rape.
Months before Brett Kavanaugh was publicly accused of sexual assault, Sen. Murkowski’s Alaska Native constituents were strongly opposed to his nomination on other grounds. Judge Kavanaugh has questioned whether constitutional protections for Native American tribes should continue to be extended to Native Hawaiians, which the Alaska Federation of Natives sees as a threat to the same protections afforded to Alaska Natives. Of more immediate concern is Sturgeon v. Frost, which is scheduled to be argued before the Court on November 5. Sturgeon could have a huge effect on Alaska Native fishing communities, some of which rely on subsistence fishing, by placing what is now federally protected land under state control.
Now, Judge Kavanaugh has been accused by multiple women of sexual assault. This issue is a critical one for senators like Lisa Murkowski and others who represent states with significant Native populations. Sexual violence is a problem across America, but the problem is particularly pervasive among native populations. Murkowski’s Alaska is home to the highest percentage of Native Americans & Alaska Natives in the country (14.9 percent). And this is an issue Sen. Murkowski cares deeply about. Just this summer, she introduced two pieces of bipartisan legislation to end sex trafficking among Native Americans and to improve critical care among the victims of sexual violence.
The allegations against Judge Kavanaugh came into greater focus Thursday after his first accuser, Dr. Christine Blasey Ford, delivered powerful credible testimony about her alleged assault. This testimony has become and will be a serious issue in the eyes of many Americans, especially women and survivors of sexual violence. The prevalence of sexual violence among Native populations will make the optics and the realities of the Kavanaugh nomination all that more challenging for Lisa Murkowski. Not only is sexual violence prevention an issue she has shown leadership on, but those individuals most at risk for sexual violence are some of her most loyal political supporters. Many attribute the success of her 2010 write-in reelection bid to support and turnout among Alaska Natives. And there is some polling evidence to suggest that may be true. In the weeks leading up to that election, CNN polled the race and found that non-whites in Alaska (a sub-population of which Alaska Natives make up nearly half), 47 percent supported Murkowski, 30 percent supported the Republican nominee, and 21 percent supported the Democrat. Ultimately, Murkowski won that race by just over 10,000 votes, and support for her among Alaska Natives was a meaningful part of that coalition.
Native communities, hit hard by an epidemic of sexual violence, will watch their senators’ votes on the Kavanaugh nomination carefully.[ii] In addition to Senator Murkowski, another Senator with a key vote on the nomination also represents a state with a significant Native population. Jeff Flake (R-Ariz.) represents Arizona, a state with a Native American population of 4.5 percent, the 7th highest in the country. In addition, Sen. Flake has been an extremely outspoken critic of President Trump and has chosen not to run again. In addition he is a Mormon and the Mormon community has been less than enthusiastic about the Trump presidency.
Another key swing vote is from across the aisle, Heidi Heitkamp, the Democratic senator from North Dakota. North Dakota has the nation’s 6th highest percentage of Native Americans (5.5 percent). Sen. Heitkamp has teamed up with Sen. Murkowski to sponsor legislation dealing with sexual assault and issues relevant to Native communities. In addition, Heitkamp faces voters this fall and her political calculus around the Kavanaugh nomination will likely consider both the allegations against the judge and the epidemic of sexual violence in Native communities.
There are many Democrats, independents, and Republicans; men and women; millennials and baby boomers who will want Lisa Murkowski and her colleagues to think carefully about the allegations against Judge Kavanaugh. The Native American and Alaska Native communities are often ones who are overlooked in public policy and not viewed as a powerful political group. However, in a moment when a Supreme Court nominee has voiced ideological positions opposed by Native communities and has been accused of incidents of sexual violence, the voices of these communities may be the ones that shift votes and defeat a nomination.
[i] The National Intimate Partner and Sexual Violence Survey, conducted by the Centers for Disease Control (CDC), uses the term “contact sexual violence” to group together several types of sexual violence, including rape and attempted rape, that involve physical contact.
[ii] The Bering Sea Elders, a consortium of 39 federally-recognized Alaska Native tribes, released a statement in opposition to Kavanaugh because of his views on Native self-rule and constitutional protection, but also because of his conduct. They state that the claims against Kavanaugh have not been fully investigated, that violence against women and children “is unfortunately an epidemic in Alaska,” and that “a woman’s word is evidence.”