As an attorney in the 1980s, Tim Kaine once had three white jurors struck from hearing a case in which his client, an African-American, alleged she was discriminated against by the defendant, who was white, the Daily Beast reported Monday.
Kaine explained later that the move was aimed at securing more black people on the jury, thus increasing his client's odds of winning her housing discrimination suit.
The white defendant's attorney employed peremptory strikes on the day of the trial to have three black people removed from the pool of potential jurors, the Daily Beast report explained. Kaine responded in kind: He used peremptory strikes of his own to have three white jurors removed, and succeeded in getting one African-American onto the jury.
Kaine explained later in an article for the University of Richmond Law Review in 1989 that he believed having more black people on the jury would swing things in his client's favor, implicitly admitting the tactic was race-based.
"I struck three white veniremen, not because they were unsympathetic individuals, but purely to increase the odds that the jury would have at least one black representative," Kaine wrote in article titled "Race, Trial Strategy, and Legal Ethics."
By moving to have more black people on the jury, Kaine was "betting that a black juror would have more empathy for a black plaintiff than a white juror would," the Daily Beast reported. "That bet was based on racial stereotyping, and Kaine knew it."
Kaine conceded in his 1989 article that the tactic of trying to influence trial outcomes by loading the jury with people of certain races was "ethically suspect," but added that it was "pervasive" in courtrooms.
"The notion that common stereotypes have some truth cannot, as a factual matter, be completely denied," he wrote. "While conventional wisdom about how different ethnic groups respond in civil or criminal trials has not withstood statistical studies, the notion that a juror may be more inclined toward a party of her own race is not necessarily a racist assumption unsupported by facts."
He added, "Most trial strategy involves 'playing averages' in situations where information is incomplete and consequences uncertain."
Still, he added, even if the tactic works, it "arguably delays progress towards the goal of a color-blind system," and could erode "the confidence in the principles to which we claim allegiance."
"The proper response to a difficult ethical dilemma is not, however, to avoid it," he wrote.
Since that civil trial in the 1980s, the Supreme Court has ruled that race-based jury selection is unconstitutional.
The Supreme Court ruled in 1986 that criminal prosecutors couldn't use a potential juror's race as a reason to block him from hearing a case. Later, in 1991, the court said that its earlier ruling applied to civil trials like the one Kaine was involved in in the 1980s.
News of Kaine's previous work as a trial attorney resurfaced Monday amid the bitter back-and-forth between the presidential campaigns of Donald Trump and Hillary Clinton, as each continues to accuse the other of being bad for African-Americans and other minority voters.
"Hillary Clinton is a bigot who sees people of color only as votes, not as human beings worthy of a better future!" the Republican nominee said at a campaign event last week in Jackson, Miss.
Clinton responded later in a major address accusing Trump of not only running a campaign built on fear and bigotry, but she also said the GOP nominee has energized and legitimized racist hate groups.
"He is taking hate groups mainstream, and helping a radical fringe take over the Republican Party," she said last week in Reno, Nev. "His disregard for the values that make our country great is profoundly dangerous."
Playing the role of vice presidential attack dog, Sen. Kaine has dutifully followed Clinton's lead, and has made explicit connections between the Republican candidate and the Ku Klux Klan.
"Ku Klux Klan values, David Duke values, Donald Trump values are not American values," he told a crowd last Friday in Tallahassee, Fla. "They're not our values, and we got to do all we can to fight to push back and win."
On the campaign trail, Clinton's vice presidential candidate also repeatedly touts his and her legal work helping members of minority communities.
"When Hillary Clinton got out of law school, she was working to help advance racial justice in the juvenile justice system in the South, segregation in Alabama," Kaine said in a recent interview on the "Late Show with Stephen Colbert." "And I about that time got out of law school, was battling housing discrimination in the South in Virginia."