Americas: United States
Special Report: Confirmation of Trump's nominee for Supreme Court Justice mired in controversy
Senior Associate Justice Anthony Kennedy announced on June 27, 2018, his intent to retire from the United States Supreme Court effective July 31, 2018. In a letter to President Donald J. Trump, he formally provided notification of his intent to retire and expressed his gratitude for serving on the United States' highest court.
Justice Kennedy’s retirement provided President Trump with a unique opportunity to reshape the court for generations with a young conservative jurist being the most likely route to do so. U.S. Senate Majority Leader Mitch McConnell (R-KY) stated that the Senate “will vote to confirm Justice Kennedy's successor this fall.” The ramifications of Justice Kennedy’s retirement was likely to shape the two parties’ approaches to the midterm elections; Democratic Senate candidates up for re-election in red states either could either vote to confirm President Trump’s to attempt to attract Republican voters, but this potentially puts them at odds with more reliable Democratic base voters.
The ramifications of this retirement also extend to established precedent; while campaigning, then-GOP presidential nominee Trump said in the October 2016 debate that he would pick nominees who would support overturning Roe v. Wade, which would effectively return abortion laws to the states. The reaction from Democrats largely focused on the fact that Majority Leader Mitch McConnell blocked hearings for President Obama’s nominee, Merrick Garland, in 2016.
Senate Minority Leader Chuck Schumer (D-NY) tweeted: “Millions of ppl are just months away from determining the senators who should vote to confirm or reject POTUS’s nominee, & their voices deserve to be heard now, as @SenateMajLdr thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.” Other Democratic Senators such as Tammy Duckworth (IL), Dick Durbin (IL), and Dianne Feinstein (CA) echoed Schumer’s sentiments, though Democratic Senators such as Joe Manchin (WV) struck a more conciliatory tone and agreed to meet with whomever President Trump nominated. President Trump said that Justice Kennedy’s replacement would come from a list of 25 potential nominees.
President Trump announced at the White House that Judge Brett Kavanaugh was his choice to succeed Justice Kennedy on July 9, 2018. Kavanaugh has served as a judge on the United States Court of Appeals for the District of Columbia circuit and was appointed by former President George W. Bush to that position in 2003. Due to controversial accusations of partisanship, he was not confirmed by the Senate until 2006. President Trump described Kavanaugh as “one of the finest and sharpest legal minds in our time.”
Kavanaugh would represent a reliably conservative vote on bench, if confirmed, and his confirmation would secure for Republicans their vaunted goal of a conservative majority on the Supreme Court. He was a member of the conservative Federalist Society and like deceased Justice Antonin Scalia, he has subscribed to textualist judicial ideology, which calls for interpretation of the law where the ordinary meaning of the legal text is all that is evaluated (i.e. factors such as the lawmakers’ intentions or the law’s intended purpose are not considered).
His judicial track record includes curtailing some of former President Barack Obama’s environmental regulations, finding the creation of the Consumer Financial Protection Bureau to be unconstitutional during dissent, and dissenting on circuit court ruling that an undocumented teenager was entitled to an abortion. Most notably, he has argued that a President could refuse to enforce the Affordable Care Act even if the courts find it to be constitutional. During his confirmation hearing to be a circuit judge, he called Roe v. Wade “binding precedent of the Supreme Court," but that does not necessarily predict how he would rule on the law were he a Supreme Court Justice himself.
In a law review article published in 2009, Kavanaugh wrote that “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” CNN reported that President Trump’s legal team reviewed these writings specifically -- a particularly relevant development, given the President’s campaign was still under FBI investigation at the time of this writing.
The three Democratic Senators who voted for Neil Gorsuch—Joe Manchin (WV), Heidi Heitkamp (ND), Joe Donnelly (IN)—all expressed their willingness to meet with and vet Kavanaugh. More liberal Democratic Senators such as Kamala Harris (CA) and Elizabeth Warren (MA) released statements indicating their vehement opposition to confirming him. Republican Senators generally released statements of praise of President Trump’s choice with Majority Lead Mitch McConnell calling him “an impressive nominee who is extremely well qualified to serve as an Associate Justice of the Supreme Court of the United States.”
Confirmation hearings for Kavanaugh began on Sept. 4, 2018. At the start of the hearings, Democrats interrupted Senate Judiciary Chairman Chuck Grassley (R-IA) one after another to ask why he was rushing through Kavanaugh's confirmation process without giving them time to do a complete review of his records.
At issue was the fact that senators received 42,000 documents about Kavanaugh only the night before, with tens of thousand documents still outstanding. Senator Richard Blumenthal called to adjourn the hearing, given the circumstances. His call was ignored by Grassley, the Republican chairman of the committee, while protesters -- mostly women -- shouted objections. Scores of protesters were, in fact, arrested for disorderly conduct and removed from the venue.
Republicans decried the mass action with Senator John Cornyn declaring, "This is the first confirmation for a Supreme Court justice I've seen, basically, according to mob rule." Democratic Senator Dick Durbin offered a different view, asserting instead, "What we've heard is the noise of democracy."
Nevertheless, it would take seven hours before Kavanaugh was even able to deliver his opening statement before the Senate Judiciary Committee. In that opening statement, Kavanaugh said that "a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic." Kavanaugh also characterized the Supreme Court as "the last line of defense for the separation of powers and the rights and liberties guaranteed by the Constitution."
Throughout, Democrats railed against Republicans' efforts to conceal tens of thousands of documents covering Kavanaugh's time when he worked as a staff secretary to former President George W. Bush from 2003 to 2006. According to Republicans, there was enough material made available for Democrats to assess Kavanaugh's record, such 12 years worth of judicial opinions delivered when he worked as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
On the issues, Kavanaugh was questioned by Senator Mazie Hirono of Hawaii on his views on reproductive rights. While Kavanaugh indicated that he believed Roe versus Wade, the landmark case legalizing abortion, has been “reaffirmed many time," he stopped short of saying that he believed the 1973 ruling was correctly decided. Hirono drew attention to his ruling on other cases that eroded women's right to privacy or access to abortion. In this way, she articulated the fears of pro-choice women across the country that reproductive rights could be chipped away legally in such rulings.
Senator Patrick Leahy of Vermont drew attention to Kavanaugh's knowledge of Republican staffers covertly stealing or accessing Democratic staffers emails and leaking them to right-wing outlets. This practice occurred in relation to the judicial confirmation process during the Bush administration in the early 2000s.
Kavanaugh had claimed he had no knowledge of the matter and never received stolen emails. However, Sen. Leahy said that Kavanaugh was “not truthful” and that the judge had in his possession information that was effectively stolen from him and other Democrats. Leahy said, “There were numerous emails sent to him that made it very clear this was stolen information, including a draft letter from me."
Sen. Kamala Harris of California asked Kavanaugh if he had discussed Special Counsel Robert Mueller or the Russia investigation with anyone from law firm, Kasowitz Benson Torres. Kavanaugh seemed perplexed about the question regarding the law firm of President Donald Trump’s personal attorney, Marc Kasowitz. Displaying her professional background as a prosecutor, Harris repeated her question and warned, “Be sure about your answer.”She added, 'I’m asking you a very direct question. Yes or no?' "
Observers wondered about the purpose of Harris' pointed question with Democrats explaining that there was good reason to believe that "a conversation happened" and that they intended to pursue that path.
In the background of that question involving the Mueller Russia probe was the fact that in 2009, Kavanaugh wrote in a law review entry that “we should not burden a sitting president with civil suits, criminal investigations or criminal prosecutions.” His reluctance to subject a president to the law has raised eyebrows from critics who wonder about his bias in ruling a potential case against President Trump should he ever face obstruction of justice allegations related to the Russia investigation.
The most dramatic moment in the Kavanaugh hearings came when Senator Cory Booker of New Jersey released previously concealed emails involving the judge. Booker said that he was going to "knowingly violate" the Senate rules by releasing an email that was kept confidential by Republicans. Booker said that it was his form of "civil disobedience," presumably in response to the Republicans' efforts at trying to obfuscate Kavanaugh's background. Booker said, “I am going to release the e-mail about racial profiling and I understand that the penalty comes with potential ousting from the Senate."
Senator Cornyn warned that Booker could be expelled from the Senate for releasing confidential documents. However, Booker was undeterred and declared, “Bring it.”
In September of 2018, Christine Blasey Ford stepped forward to accuse of Kavanaugh of sexual assault while the two of them were high school students more than 30 years ago according to an exclusive from the Washington Post on Sept.16, 2018.
In the summer, Ford had originally contacted The Washington Post and Democratic lawmakers while wishing her identity to be kept confidential. She contacted The Washington Post in early July as well as Rep. Anna G. Eshoo (D-CA-18) and relayed the details of the incident. Later in July, she contacted Senator Dianne Feinstein, who honored Ford’s request for confidentiality. She refused to share Ford’s correspondence with her colleagues and instead relayed the information to the FBI so that it may be included in Kavanaugh’s background file. Nevertheless, various media sources were able to report that the letter involved possible sexual misconduct, and Ford’s privacy was slowly being chipped away. She eventually decided that her desire to tell her story on her terms outweighed her fear of retaliation from President Trump, his allies, and his supporters.
Ford alleged that while both she and Kavanaugh were drunk, Kavanaugh pinned her to the bed, groped and rubbed against her body, and muzzled her mouth with his hand when she tried to scream. She said she feared for her life, and was only able to get away when Mark Judge, Kavanaugh’s peer at the Georgetown Preparatory School, jumped the pair and sent them all tumbling, after which Ford was able to escape.
Of significance was the fact that she gave the Washington Post therapy session notes from 2012 that corroborated her story and she was administered a polygraph by a former FBI agent at the advice of her attorney, Debra Katz. The results of the polygraph concluded that she was being truthful in her relaying the details of her sexual assault.
The White House sent the Washington Post Kavanaugh’s unequivocal denial of the allegations of sexual assault: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.” Before Ford’s identity was revealed, Mark Judge also denied that Kavanaugh was capable of sexual assault: “It’s just absolutely nuts. I never saw Brett act that way.” Senator Chuck Grassley released a letter from 65 women who claimed they knew Kavanaugh during his high school years and spoke highly of his character. This was before Ford came forward.
Responses to the story by Senators were swift. Senator Chuck Schumer called on Senator Grassley to delay the vote on Kavanaugh until the allegations, which he considered “serious & credible”, were properly investigated. Meanwhile, Senator Grassley assailed Senator Feinstein for withholding Ford’s allegations from the rest of the Judiciary Committee for weeks. Senate Republicans in general were fixated on the timing of the allegations as well as Feinstein’s handling of the situation. Meanwhile, Senate Democrats called for grinding the nomination process to a halt at the very least, and until Ford had an opportunity to speak out regarding her allegations. Senator Jeff Flake (R-AZ) said they shouldn’t move forward until they heard more about the allegations against Kavanaugh, and Senator Lisa Murkowski (R-AK) said the judiciary committee “might have to consider” delaying the vote. She later called for both Kavanaugh and Ford to speak “under oath.” Senator Susan Collins (R-ME) also called for both individuals to speak under oath. Senate Majority Leader McConnell lamented that Democrats were not adhering to regular order and bashed them for the press seizing on Ford’s story.
On Sept. 17, 2018, the White House released a statement on Kavanaugh being ready to rebut Ford’s allegations before the Senate: “Judge Kavanaugh looks forward to a hearing where he can clear his name of this false allegation. He stands ready to testify tomorrow if the Senate is ready to hear him.”
It was later announced that testimony would be heard by both Kavanaugh and Ford On Sept. 24, 2018. That date was subsequently changed to Sept. 27, 2018.
Ahead of that hearing date, there were fresh allegations against Kavanaugh, this time by a woman named Deborah Ramirez. Allegations by Ramirez were revealed in a report by Ronnan Farrow and Jane Mayer in The New Yorker. That account described the Supreme Court nominee, Kavanaugh, exposing himself to Ramirez and trying to force her to touch his private parts. Ramirez was reportedly reluctant to come forward, saying, “I didn’t want any of this...But now I have to speak.” Regarding the incident that happened tears ago, she added, “I would think an FBI investigation would be warranted."
In another development, Michael Avenatti, the lawyer representing adult entertainment actress Stormy Daniels, announced that he was representing an unnamed witness who could corroborate new allegations of sexual assault involving the Supreme Court nominee, Kavanaugh. Avenatti did not reveal the identity of his client but called for the person to testify publicly.
There were also questions as to whether or not Senate Republicans sought to rush through the confirmation process, knowing that these allegations resided in the background. In the New Yorker piece, Farrow and Mayer noted that that Senate Republicans tried to accelerate Kavanaugh’s confirmation vote upon learning of this new accusation. According to Farrow and Mayer: “Soon after, Senate Republicans issued renewed calls to accelerate the timing of a committee vote.”
For their part, Senate Democrats were reportedly looking into the new allegation of sexual misconduct by Kavanaugh.
Note: It should be emphasized that the Supreme Court nominee, Kavanaugh, has denied the accusations levied against him. The Trump White House has menawhile stood steadfastly with Kavanaugh, releasing a statement in which it declared that the allegations against him were part of a "coordinated smear campaign" by Democrats.
Denise Youngblood Coleman, PhD.
President and Editor in Chief
-- Sept. 24, 2018