By Sonal Somaiya
In case you missed it, Judge Brett Kavanaugh was confirmed on October 6th, by a 50-48 vote of the Senate to be appointed as a Justice of the Supreme Court. One of the most prestigious and coveted positions in government, an appointment to the Supreme Court is for life, and is highly dependent on the sitting President, administration, and Congressional allies. His confirmation marks the end of a tumultuous time both on the Hill and around the country as Dr. Christine Blasey Ford, a childhood acquaintance of Judge Kavanaugh, came forward with allegations that he attempted to sexually assault her at a party in the summer of 1982 while they were both in high school. She initially sought to keep the audience of her allegations private by requesting anonymity in a written letter outlining her concerns to her Representative, passed on to select Senators on the Judiciary Committee. She later felt compelled to come forward publicly, through requests from both parties, and deliver an emotional and powerful testimony in front of the Committee and the nation.
Though a Supreme Court nomination is expected to be contentious and reflective of the majority party’s influence and policy objectives, this confirmation played out differently than most given the sensitive nature of the allegations brought forth by Dr. Ford and the #MeToo movements happening across industries and touching all aspects of society. For one, the hearings were broadcast on most major news stations and commentators representing both parties covered the testimony extensively. This underscores the recent sensationalization of political decisions in this era. The politics of the Trump administration have played out like a soap opera with hirings and firings each week and a running political commentary from the President available to us via Twitter feed. This wasn’t the first time such allegations have come forth in a Supreme Court confirmation process – only 27 years ago, during Judge Clarence Thomas’ confirmation process, law professor Anita Hill accused him of sexual harassment. Judge Thomas was also subsequently confirmed as a Supreme Court justice and we find ourselves in a similar situation today.
Friday’s decision to continue forward with Judge Kavanaugh’s confirmation process despite Dr. Ford’s claims of sexual assault and Justice Thomas’ similar experience reflect a willingness to overlook allegations of sexual assault in the face of a greater political opportunity. Interestingly, throughout the testimony, many Republicans were careful not to cast a doubt on Dr. Ford’s testimony; many of them began their questioning with statements like “I believe you”, indicating that they were at least somewhat willing to hear her testimony with an open mind. Regardless of whether the Committee members believed her or not though, the votes proved that members were still willing to push Judge Kavanaugh through the process regardless of the doubts raised by Dr. Ford’s allegations or his own self representation during the hearings.
This outcome adds to the litany of incidents where victims of sexual assault do not necessarily see their attacker convicted due to insufficient evidence or inconsistencies in their testimonies, but given this hearing was not a trial – though it seemed very much like one – I’ll set aside that issue for now and focus on the implications of accepting a nominee like Judge Kavanaugh to the bench despite such allegations against him. In addition to the doubts raised by his accuser, Judge Kavanaugh put forth an extremely emotional and politically charged testimony. Though this might be understandable if he were on trial, the Judiciary Committee hearings were meant to be more akin to a job interview, and were never meant to adjudicate the actual facts of the case.
Let’s think about what the Supreme Court confirmation is supposed to be – a job interview by majority vote. What is this process supposed to look like? First, the President consults with Senators and nominates a candidate. The nomination is sent to the Senate Judiciary Committee for their review consideration. The Senate Judiciary Committee is comprised of 20 chosen party leaders and reflects the majority / minority ratio of the broader Senate meaning that today, it consists of 11 Republicans and 9 Democratic Senators. Then, the Committee will hold a hearing on the nominee and take time to review records from the FBI and other sources and hear witnesses both supporting and opposing the nomination. Their decision is supposed to probe at the nominee’s qualifications, judgement and philosophy – fundamental qualities and traits one might seek in a coworker or new hire. Once the Committee has voted, their recommendation is sent to the full Senate who will debate the nomination and proceed to vote. Only a simple majority is required to confirm the nominee.
Throughout this process, I’d argue that whether or not we choose to believe Dr. Ford’s testimony, Judge Kavanaugh’s actions have cast at least a shadow of doubt on his ability to perform the job of Supreme Court Justice well. Put one way, Judge Kavanaugh doesn’t pass the “no asterisks standard – plausibly [convincing] people who vociferously disagree with his jurisprudential views that he could serve credibly as a Justice” according to Benjamin Wittis, Editor-in-Chief of Lawfare. His actions, the way he countered basic questions aimed at discerning what happened at the party where the assault was alleged to have occurred, and the way he blamed Democrats and supporters of Hillary Clinton’s presidential campaign clearly indicated that any pretense of level-headedness had gone out the window. Charlie Sykes, host of the conservative political podcast The Daily Standard, put it this way: “Even if you support Brett Kavanaugh…that was breathtaking as an abandonment of any pretense of having a judicial temperament… it’s possible, I think, to have been angry, emotional, and passionate without crossing the lines that he crossed – assuming that there are any lines anymore”.
As Kavanaugh’s nomination is now secured with the support of Senator Susan Collins (Republican from Maine) and Joe Manchin III (Democrat from West Virginia, and the only Democrat to ), we usher in a new era of drama not only in the White House but in the Supreme Court as well. This will mark a change in the course of Supreme Court history. Though we have always had Justices spanning the spectrum of partisan politics, they ultimately still confer together and caucus in the same room. With the addition of such a polarizing figure, who knows how the Supreme Court’s cohesion will fall.