Judge Brett Kavanaugh will soon be Justice Brett Kavanaugh. But the consequences of his confirmation Saturday will inevitably be analyzed for years to come – not only on the Supreme Court and the Senate, but across the country.
The Senate voted 50-48 to confirm Kavanaugh to the highest court in the land, a relatively anticlimactic finale to one of the most contentious Supreme Court confirmation fights in recent history. The vote was consistently interrupted by protesters shouting from the gallery, causing Vice President Mike Pence, who was presiding, to call for order. Protesters also descended on the Capitol to express their dissatisfaction with the confirmation.
The confirmation not only exposed the raw emotions of sexual misconduct allegations, but sparked intense national conversations on class, privilege and gender.
Chief Justice John Roberts and retired Justice Anthony Kennedy – whose seat Kavanaugh is taking – will swear him in as a justice later Saturday, “so he can begin to participate in the work of the Court immediately.”
Kavanaugh’s path the the Supreme Court seemed all but assured before allegations surfaced from Christine Blasey Ford that he had tried to rape her at a house party in 1982 when they were both in high school. Two other accusations followed – all of them decades old. Deborah Ramirez alleged that Kavanaugh exposed himself to her when they were in college, and Julie Swetnick alleged she was gang raped at a party Kavanaugh attended.
Ford, a California psychology researcher, was called before the Senate and her testimony Sept. 27 riveted the country, sparking numerous women, including high profile figures like Connie Chung, come forward with their own stories of sexual assault. Kavanaugh’s testimony in response, later that same day, was a boisterous, emphatic denial of any of all claims of impropriety.
In the end, Ford’s testimony before the committee wasn’t enough to persuade a significant number of Senators to break with the Republican Party and vote against Kavanaugh. An FBI investigation was unable to corroborate her allegations, although Democrats decried that process itself was a sham and purposely manipulated by the White House to reach that conclusion. Neither Ford nor Kavanaugh was interviewed for the FBI report, and Swetnick’s claims weren’t investigated. Ramirez was interviewed but her attorneys said investigators never spoke the witnesses she said could corroborate her claim.
The fate of Kavanaugh’s nomination was all but sealed Friday afternoon, when Maine Sen. Susan Collins, a key swing Republican, announced she would vote to confirm him after reviewing the FBI’s report on sexual misconduct allegations levied against him in the final weeks of his nomination. Immediately after Collins concluded her speech, West Virginia Sen. Joe Manchin, the lone Democrat holdout, announced his support for Kavanaugh, as well.
While the decisions from Manchin and Collins gave Kavanaugh the necessary votes to ascend to the court, his reputation as a Justice may always be tainted, not only by lingering questions about the allegations of sexual misconduct – which his opponents and, according to polling a majority of women, believe – but about his judicial temperament. Many Democrats openly questioned the latter after his Senate testimony, where he decried the allegations against him as a “calculated and orchestrated political hit” that was the result of anger about President Donald Trump’s election and Kavanaugh’s work in the office of Ken Starr, the prosecutor whose investigation ultimately led to Bill Clinton’s impeachment when he was president. (The ranking Democrat on the House Judiciary Committee, Rep. Jerrold Nadler, told the New York Times Friday he would open an investigation into Kavanaugh if Democrats retake the House in the 2018 elections.)
“I think there’s going to be a cloud over Justice Kavanaugh for most of his career,” said Paul M. Collins, Jr., a political science professor at the University of Massachusetts-Amherst and co-author of Supreme Court Confirmation Hearings and Constitutional Change, a book about the history of Supreme Court confirmation hearings. “This was possibly the most controversial Supreme Court nomination in American history. The allegations of sexual assault are obviously exceptionally serious, but so are the allegations of perjury. And there seems to be fairly substantial evidence that at a minimum he misled the judiciary committee. And so having a justice on the Supreme Court who misled the committee, it doesn’t look good for Kavanaugh and it doesn’t look good for the Supreme Court.”
Answers about how Justice Kavanaugh will respond will play out over his lifetime appointment to the Supreme Court. Kavanaugh is 53 years old.
The political implications will likely be found at the polls in the upcoming midterm elections on Nov. 6. The country will soon learn whether the controversy will rally President Donald Trump’s conservative base or women and sexual assault survivors who felt they were ignored through the confirmation process – or both groups. Most immediately, however, Senators were in nearly unanimous agreement that the chamber needs to heal the partisan rancor that reached a fever pitch over the last month.
“Without more effort to respect each other, to hear each other, to work across the aisle, the Senate as an institution cannot be the legislative vibrant core of our republic,” Delaware Sen. Chris Coons, who sits on the Judiciary Committee and was instrumental in working with Arizona Sen. Jeff Flake on pushing for an additional FBI investigation, said on Friday.
Kavanaugh’s razor thin confirmation vote was the narrowest margin in recent American history. A confirmation vote hasn’t been so precarious since Justice Clarence Thomas, who was confirmed 52-48 in 1991 after Anita Hill came forward with sexual harassment allegations. Throughout Kavanaugh’s confirmation, Democratic lawmakers and progressive activists repeatedly invoked Thomas’ confirmation, suggesting that nothing had changed for women in nearly three decades.
Irrespective of their claims, there was one clear difference between Kavanaugh and Thomas’ confirmation battles: the divisions in the chamber.
“What I’ve been dealing with since July 10th, the downhill slope that Schumer’s put us on, we’re really dealing with a demolition derby,” Sen. Judiciary Chairman Chuck Grassley said this past Thursday.
“This has been my ninth Supreme Court hearing and I must say I’ve never seen anything like this,” California Sen. Dianne Feinstein, the ranking member on the Judiciary Committee who was elected into office a year after HIll’s testimony said on the Senate floor Friday.
Ruth Bader Ginsburg, who was confirmed 96-3 25 years ago, was even lamenting the tensions before Ford came forward. “The Republicans move in lockstep, and so do the Democrats,” she said at an event at George Washington University last month. “I wish I could wave a magic wand and bring it back to the way it was.”
When Thomas was confirmed by that narrow margin in 1991, it was considered an anomaly. Supreme Court confirmation processes were’t considered sources of partisan infighting; they were mundane Senate procedures. Anthony Kennedy, the outgoing justice Kavanaugh will be replacing, was confirmed 97-0 three years before Thomas. But as Washington became increasingly divisive, Supreme Court nominations gradually followed suit. Samuel Alito was confirmed 58-42 in 2005; Sonia Sotomayor was confirmed 68-31 in 2009; Elena Kagan was confirmed 63-37 in 2010. One reason for the bipartisan support for Supreme Court nominees was that confirmation in the Senate still required 60 votes. But in 2017, Senate Majority Leader Mitch McConnell changed the rules to require 51 votes for confirmation in order to ensure the passage of Justice Neil Gorsuch – whose nomination came from Trump despite the Supreme Court seat coming open near the end of President Barack Obama’s term when Justice Antonin Scalia.
But even Gorsuch was confirmed with the support of three Democratic Senators. Kavanaugh had just one Democrat.
Part of these divisions were due to circumstances beyond Kavanaugh’s control. Even before Ford came forward alleging that he had sexually assaulted her when they were teenagers, he was already facing an intensely partisan Senate. Kennedy was often a swing vote on a Supreme Court divided between four liberal justices and four conservative justices, with Kennedy often a swing vote on key issues like abortion and gay marriage. Kennedy’s retirement meant that Republicans had a chance to tilt the court rightward for a generation. Democrats buoyed by anger from McConnell’s refusal to hold a hearing on Merrick Garland after Scalia’s death, were determined to stop them. Confident that the balance of power in the Senate could shift after the November midterms, Democrats did not want these confirmation hearings to be imminent. “I will oppose him with everything I’ve got,” Senate Minority Leader Chuck Schumer said the morning after Trump nominated Kavanaugh in July. Schumer held true to his word, but Kavanaugh’s nomination didn’t truly seem in doubt until the sexual misconduct allegations surfaced.
With Kavanaugh’s confirmation now a done deal, Republicans clearly want the FBI investigation to be in the rearview mirror. “What I’d like to do, because this is almost rock bottom, I would like to have the future mending things so we can do things in a collegial way that the United States Senate ought to do, particularly when it comes to Supreme Court nominations,” Grassley said Thursday when asked if he would take any potential action against Ford’s legal team.
To be sure, the Senate was still legislating on a bipartisan basis even as lawmakers attacked each other. This week alone, the chamber almost unanimously passed sweeping legislation addressing the opioid crisis and a bill reauthorizing funding for the Federal Aviation Authority (FAA) for the next five years. For some lawmakers, these bills were proof that the chamber could ultimately recover from the divisiveness of the past month. “The Senate’s not very big,” Missouri Republican Sen. Roy Blunt said Friday. “It’s a matter of figuring out of how to find what you can agree with somebody on and move forward on that. There are clearly some hurt feelings here … I think we’ll move on but it will take a while.”
McConnell was also dismissive of the idea this would do lasting damage. “These things always blow over,” he said in a news conference after the vote.
Notably, however, these achievements were completely overshadowed by the partisan infighting. Members on the Senate Judiciary Committee went back and forth over the details of the FBI investigation, with Democrats calling the process a “sham,” and Republicans arguing that Democrats would never be satisfied. McConnell, the Senate Majority Leader, repeatedly said on the Senate floor that Democrats were using the allegations as fodder for delay, leading Schumer to all but accuse him of lying.
“It is a blatant falsehood,” Schumer said of McConnell’s remarks this past Wednesday. “I’m so tempted to use the L-word, but he’s my friend.”
That friendship was rarely, if ever, on display this past week.
While Republicans may be pleased with the outcome of the process, the actual steps to get there seemed to leave the entire chamber exhausted, frustrated and unsure how to recover. “If this is not rock bottom, I wouldn’t want to be in my business,” South Carolina Republican Sen. Lindsey Graham, who voted for both of Obama’s Supreme Court nominees and was an outspoken supporter of Kavanaugh, said on Thursday after the FBI report came out.
Notably, the two key Republican swing votes on Kavanagh – Collins and Alaska Sen. Lisa Murkowski – devoted large sections of their floor speeches Friday to lamenting partisan division.
“We have come to the conclusion of a confirmation process that has become so dysfunctional it looks more like a caricature of a gutter-level political campaign than a solemn occasion,” Collin said at the top of her 44-minute speech that concluded with her announcing her support of Kavanaugh.
“Our Supreme Court confirmation process has been in steady decline for more than 30 years,” she continued. “One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.”
About four hours later, Murkowski delivered her speech. She had reached a different conclusion than Collins – earlier in the day she had voted against the procedural motion to advance Kavanaugh’s nomination. (She voted present on Saturday to allow her colleague, Montana Sen. Steve Daines, to attend his daughter’s wedding). But when she spoke about her disappointment with the Senate, she was firmly in the same camp as Collins.
“We must do better as a legislative branch,” she said at the beginning of her speech. “We have a moral obligation to do better than this.”