By Oliver Fredrickson
After a historically chaotic confirmation process, Brett Kavanaugh was finally sworn onto the Supreme Court on Saturday, Oct. 6. Kavanaugh’s confirmation hung in the balance for 89 days amid concerns about his strongly conservative beliefs and later allegations of sexual assault. Nevertheless, the Senate confirmed his nomination by a vote of 50-48.
President Trump nominated Kavanaugh to fill the seat left by the retiring Justice Anthony Kennedy. Since 2006, Justice Kennedy had been the decisive “swing vote” on a number of important issues. Replacing this seat with the unapologetically conservative Kavanaugh entirely reconfigures the composition of the Court. With a loyal five-man conservative bloc, future decisions on women’s rights, gay marriage, voting rights, the environment, and affordable health care will lie in the balance.
Who is Brett Kavanaugh?
Kavanaugh graduated from Yale Law School in 1990 and later clerked for Justice Kennedy. He then assisted Kenneth Starr in preparing the Starr Report delivered to Congress on the Monica Lewinsky-Bill Clinton sex scandal. After a brief stint in private practice, Kavanagh was hired by George W. Bush (whom he earlier helped “win” the 2000 election) as an associate to the White House Counsel. In 2003, Bush nominated Kavanagh to the United States Court of Appeals for the District of Columbia Circuit. The Senate confirmed his nomination by a vote of 57-36.
The Supreme Court Nomination Process
Trump nominated Kavanaugh to the Supreme Court on July 9, 2018. With the midterm elections taking place on November 6 (daily reminder to vote!), Republican Senators made it clear that they intended to have Kavanaugh confirmed before the election by whatever means necessary.
Given Kavanaugh’s extensive history as a public servant, he had a paper trail in excess of one million documents. When the Senate Judiciary Committee commenced its public hearings on Sept. 4, hundreds of thousands of documents had not yet been disclosed. Senators were expected to ask questions and assess Judge Kavanaugh’s competency with just 4% of the available documents. Republican Senators (who held a 11-10 majority on the committee) refused to postpone the hearing until the remaining documents were disclosed. The great irony is that no court would ever allow a hearing to commence with only 4% of documents discovered.
The hearing was yet another example of why judicial confirmation hearings have become substantively meaningless. It is now customary for nominees to refrain from answering questions that may come before them on the Court so as to avoid any perceived prejudice. Nominees such as Kavanaugh have used this rule as a veil to subvert any substantive legal questions. As Kavanaugh refused to discuss a host of contemporary legal issues, we must look back at his history to elucidate his position on two of the most pressing.
Kavanaugh’s Political Views
During the hearing, Kavanaugh acknowledged Roe v. Wade (protecting women’s right to abortions as included in the general right to privacy) as existing precedent but refused to express a personal opinion on abortion. With four pro-life Justices on the bench, these answers did little to ease the concerns of individuals who worry that Kavanaugh will hollow out or even overrule Roe entirely.
During his 2016 presidential campaign, Donald Trump stated, “I am pro-life and I will be appointing pro-life judges.” Unfortunately, Kavanaugh’s paper trail indicates that he fits this mould perfectly. In a 2017 speech, Kavanaugh lauded the late Chief Justice Rehnquist’s dissent in Roe, noting that the Bill of Rights did not include an explicit right to abortion and that a new right should only gain constitutional status if it was “rooted into the traditions and conscience of our people.”
On the bench, Kavanaugh reinforced this view in Azar v. Garza. In Azar Kavanaugh, dissenting, would have refused to allow an undocumented minor from obtaining an abortion notwithstanding that the girl had jumped through every hoop, including persuading a Texas judge that she was sufficiently mature to make the decision.
We can’t know what position Kavanaugh will take on abortion when he takes his seat on the Supreme Court, but the record we do have puts Roe at risk. Even the Supreme Court does not overrule Roe, four Pro-Life, conservative Justices are almost certain to hollow out the applicability of Roe.
As the Mueller Probe continues and more of Trump’s contemporaries are convicted, the likelihood of Trump being indicted (or at least subpoenaed) continues to increase. If this does eventuate, it will raise an interesting and largely untested constitutional question: can a sitting President be indicted for a crime? It will likely be the Supreme Court who has the final say on this incredibly important question.
Conveniently for Trump, Kavanaugh has promoted a wide-reaching view of presidential immunity. In a 2009 law review article, Kavanaugh suggests that a sitting president should not be subject to civil lawsuits or to criminal investigation or prosecution. He states that “I believe that it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” As such, complying with any criminal investigation would impose an intolerable distraction for a sitting president.
This principle, which exemplifies broad presidential immunity, would only insulate President Trump from criminal investigation while he remains in office.
Sexual Assault Allegations
Kavanaugh’s confirmation was turned on its head following numerous allegations of sexual assault during his time at Georgetown Prep and Yale.
As each of the three allegations surfaced, Democratic Senators, as well as the general public, called to delay confirmation the vote until the accusers were given a hearing to voice their concerns. Despite strong reluctance from Republican Senators, Dr. Christine Blasey Ford was given a hearing to provide her testimony.
The historic hearing took place on Sept. 27. It began with Dr. Ford providing a moving and emotional testimony detailing the assault. She claimed that Kavanaugh and his friend, Mark Judge, pushed her onto a bed, at which point Kavanaugh groped her and tried to take off her swimsuit. When she tried to yell, Kavanaugh allegedly put his hand over her mouth to stop her from screaming. Judge then drunkenly fell onto the bed, allowing Ford to get up and run out of the room. Ford alleged that both Kavanaugh and Judge were extremely intoxicated during this encounter. When asked how certain she was that the perpetrator was Brett Kavanaugh, she said “100 percent.” Her testimony was raw and composed; even Fox News commentator Chris Wallace labelled it “extremely credible” and “a disaster for the Republicans.”
What came next, nobody expected. Kavanaugh began his testimony with a hostile and confrontational 45-minute monologue where he characterised the hearing as a “calculated and orchestrated political hit” and “revenge on behalf of the Clintons.” From a potential Supreme Court Justice, a role where political impartiality is paramount, these attacks were disturbing to say the least. Throughout his testimony, Kavanaugh denied the allegations “categorically and unequivocally.”
Despite denying the claims, several aspects of Kavanaugh’s testimony raised questions. First, despite being under oath, Kavanaugh made a number of questionable statements. For example, Kavanaugh discussed at length his infatuation with beer. This is an excerpt from his testimony: “I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer.” However, Kavanaugh stated that despite sometimes having “too many beers,” he had never:
- woken up from drinking with his clothes in a different state than when he went to sleep;
- woken up in a different location than he remembered passing out;
- had someone tell him something that he did not remember from a night of drinking;
- blacked out from drinking too much
These comments are directly contrary to a number of statements made by friends, classmates and roommates of Kavanaugh during this time period.
Secondly, Kavanaugh’s demeanour and lack of respect towards Senators was startling. Even accepting Kavanaugh’s position that he is innocent of all claims, the manner in which he treated Senators was aggressive, combative, and disrespectful. One exchange with Senator Amy Klobuchar (D-MN) was truly remarkable. Softly spoken Senator Klobuchar, after detailing her father’s troubles with alcoholism, asked Kavanaugh: “Was there ever a time when you drank so much that you couldn’t remember what happened, or part of what happened the night before?” To this routine question, Kavanaugh responded, “Have you?” When asked to answer the question Kavanaugh doubled down, saying, “I’m curious if you have?” In what was essentially a job interview for a lifetime position on the Supreme Court, this sort of disrespect shown towards Senators was unprecedented.
Finally, Kavanaugh refused to endorse the Democratic Senators’ request for an FBI investigation. In a striking exchange, Senator Dick Durbin (D-IL) asked Kavanaugh to turn to Don McGehan, White House Counsel, and “ask him to suspend this hearing and nomination process until the FBI completes its investigation.” To this, Kavanaugh again dodged the request and, after an awkward silence, merely said, “I welcome whatever the committee wants to do.” It is hard to imagine what one would do in Kavanaugh’s position, but if you really wanted to clear your name at all costs, surely you would be pleading for an FBI investigation to ascertain all of the facts.
Reactions to the Hearing
In a scene that highlighted the hyper-partisan time we’re currently living in, both Democrats and Republicans lauded the hearing as a “win.” After the dust settled, what really mattered was the vote to determine whether Kavanaugh would be endorsed by the Senate Judiciary Committee. With 11 Republicans and 10 Democrats on the Committee, a vote along party lines would have sent Kavanaugh to a vote of the full Senate.
There was serious to-ing and fro-ing during this period, as Twitter went berserk with commentators trying to ascertain which way Senators on the committee would vote. Eventually, the vote took place and Kavanaugh passed with an 11-10 vote. However, there was one extremely important caveat by Senator Jeff Flake (R-AZ). Flake, who is coincidentally retiring this November, agreed to vote in favour of Kavanaugh on the condition that an FBI investigation is conducted to ascertain as much information as possible.
From the outset, both the Republicans and White House placed a strict timeframe on the investigation. Further, even at the time of printing, the general public have not been told the scope of the report.
The final report was ultimately produced on Oct. 4 in truly bizarre fashion. Mitch McConnell announced that the report would not be released to the public and only one copy of the report would be available to Senators. The report would be available to Senators in one hour blocks, rotating between Republicans and Democrats.
Once the report became available, it became apparent that it is was severely deficient in its scope and depth. To start, neither Dr. Ford nor Kavanaugh were interviewed. This is notwithstanding Kavanaugh failing to directly answer a swarm of questions asked by Senators during the hearing. Further, over 50 classmates from Yale and Georgetown Prep attempted to inform the FBI of information that directly contradicted Kavanaugh’s statements to the Senate Judiciary Committee.
Ironically, after the drama and intensity of Dr. Ford’s hearing and the anticipation of the FBI report, the Senate ended up almost exactly where it started. The decision was essentially left with Susan Collins (MA-R) and Joe Manchin (WV-D). After enormous anticipation, Susan Collins delivered a 43-minute speech outlining why she planned to vote for Kavanaugh’s confirmation. She, like so many Republican Senators, acknowledged Dr. Ford’s credible testimony and stated that “I believe that she is a survivor of a sexual assault.” In light of that, her willingness to vote for Kavanaugh makes little sense, considering Dr. Ford said she was “100 percent” sure that Kavanaugh was the perpetrator.
The full-Senate procedural vote (the decision as to whether the Senate would actually vote on Kavanaugh’s confirmation) on Friday, Oct. 5 turned out 51-49 — leading to the final full-Senate confirmation vote on Saturday, Oct. 6. That Saturday, the Senate voted 50-48 in favor of confirming Kavanaugh, and the Justice was sworn in later that day.
Unsurprisingly, the response to Justice Kavanaugh’s confirmation has been divided across party lines. Republicans celebrated the appointment of a 53-year-old conservative who will likely be on the Supreme Court for 30+ years. Conversely, Democrats were enraged at the lack of investigation that transpired and the lack of credence given to the testimony of Dr. Ford. Fundraising for the Democratic Party spiked dramatically. Most notably a crowdsource funding site quickly raised $3 million for the future opponent of Susan Collins, a Republican senator, in her 2020 re-election.
This historic confirmation battle has likely energised constituents from both parties and set the stage for an extremely important midterm election on Nov. 6.
Oliver Fredrickson, 3L, is a visiting student from Victoria University of Wellington (New Zealand), where he studies law.