Brett Kavanaugh joins the Supreme Court

The consequences of a controversial confirmation process

On October 6, Brett Kavanaugh became an Associate Justice of the Supreme Court of the United States, after going through a controversial confirmation process. The question is, what does his appointment to the Supreme Court mean continuing forward, both politically and across society?

Kavanaugh’s nomination and confirmation process was fairly smooth until several sexual assault allegations emerged in late September, which delayed the vote of the Senate Judiciary Council; however, the key hearing of the confirmation process was when Dr. Christine Ford came before the council to answer questions about an alleged sexual assault that occurred in the early 1980s when both her and Kavanaugh were in high school. Despite the allegations against him, Kavanaugh was sworn in with 50 votes for and 48 against his appointment during the final vote in the United States Senate.

Immediately after Kavanaugh was sworn in, the message from the Democrats, to disappointed individuals, was to vote. Since the American midterm elections are November 6 and Republicans currently control the Senate by a slim majority, voting is a chance for those against Kavanaugh to voice their discontent with the Senators that voted him in. Furthermore, changing what party controls Congress can act as a safeguard against right-leaning Supreme Court decisions that are probable with Kavanaugh’s appointment since Congress can pass bills that override court rulings.

There are also worries about how Kavanaugh will vote when important cases involving issues like the right to bears arms and religion come up. 

Particularly, there are concerns that Kavanaugh might vote to overturn or weaken Roe v Wade, the case that establishes the right to access legal abortions. While Kavanaugh has stated that he acknowledges the case as precedent, he has sided in the past with dissenters to the outcome of the case. In general, Kavanaugh poses a political threat since he brings the number of right-leaning justices to a majority in the Supreme Court, which could mean the future rollback of rights.

Kavanaugh’s appointment has caused political concerns, but the messages from the way the allegations of sexual assault were handled during the confirmation are having a far greater impact on society. The contrast between the crowds of protesters outside the hearings versus President Trump’s strong convictions of Kavanaugh’s innocence shows that America is clearly divided over Kavanaugh. While some might see the sexual assault allegations as a distraction to voting in a Supreme Court justice, many others want to make sure that judges appointed for life will make decisions that are fair and just to all members of society, particularly women.

Kavanaugh’s confirmation hearing over the sexual assault allegations also represented the imbalances in which men and women are treated during such cases. Dr. Ford, a highly educated woman, answered every question during the hearing calmly with the use of some scientific explanations, passed a polygraph test, and after all that, received death threats for going public with her accusations. 

Kavanaugh, on the other hand, did not answer all the questions, became extremely emotional and aggressive, attacked Democrats for trying to undermine him, and ended up on the Supreme Court. Even sexual assault allegations at the top level in America reflect that even if a woman does everything in her power to ensure her credibility, her accusations can be brushed aside in favour of an alleged perpetrator of sexual violence.

That is not to say that there were only faults with how Dr. Ford and Kavanaugh’s testimonies were presented and then weighed during the hearings. There is also the issue that the members of the Senate Judiciary Council are predominantly men, which undermines their ability to decide if Kavanaugh’s final Senate vote should occur since they do not represent the actual proportion of men and women in the United States. Women are at a higher risk of sexual assault and with limited representation on the Senate, they may be biased when it comes to sexual assault allegations. Furthermore, the FBI investigation that was ordered after Dr. Ford and Kavanaugh’s hearing was limited by which witnesses and evidence it could find in such a short period of time, which for some people, leaves it unable to prove Kavanaugh’s innocence.

Kavanaugh’s appointment to the Supreme Court is sure to cause ripples for years to come politically and across American society. The greatest lesson that Kavanaugh’s confirmation process can teach is how much more work there is to do on how sexual assault allegations are examined, especially with respect to how victims are treated. Perhaps that lesson can be applied a bit closer to home at StFX, since the university is currently facing the complicated task of learning how properly address sexual assault on campus.

Kavanaugh Confirmed to the U.S. Supreme Court

Hearing shrouded in controversy after allegations of sexual assault surface

The contentious confirmation of Judge Brett Kavanaugh was brought to a close on Saturday, after senators voted 50- 48 in favour of his appointment as an Associate Justice of the Supreme Court of the United States. Kavanaugh was nominated in July by President Trump to fill the vacancy left by retired Justice Anthony Kennedy, who retired on July 31. The Senate Judiciary Committee’s confirmation hearing began on September 4, with a vote scheduled for September 20. The vote was postponed after Kavanaugh’s nomination became shrouded in controversy following allegations of sexual assault dating back to his years at Georgetown Preparatory School. Dr. Christine Blasey Ford, professor of Psychology at Palo Alto University, contacted local California congresswoman Anna Eshoo within days of Kavanaugh being shortlisted as a potential Supreme Court nominee. She also contacted reporter Emma Brown from the Washington Post on condition of anonymity. According to Brown, “...[S]he was terrified about going public. She didn’t want to speak on the record.”.

Upon hearing her testimony, congresswoman Eshoo brought the matter to ranking senator Dianne Feinstein; the senator promised Dr. Ford that she would accommodate her wish to remain anonymous, and did not bring the matter up during the beginning of the Kavanaugh hearing.

By September 12, however, The Intercept had reported that Senator Feinstein was withholding information pertinent to Kavanaugh’s investigation. After consultation with Dr. Ford, Feinstein relayed her written testimony to the FBI, who proceeded to redact identifying content from the testimony and forward it to the White House. The White House then proceeded to forward the testimony to the Senate Judiciary Committee for reference during the Kavanaugh hearing.

Despite Dr. Ford’s wishes to remain anonymous, various reporters and media personnel began working to discover the identity of the victim. Dr. Ford struggled with the choice to go public for quite some time, but ultimately chose to appear in front of the Senate Judiciary Committee during an extension of Kavanaugh’s hearing for testimony. In her written testimony, she stated:

“My hope was that providing the information confidentially would be sufficient to allow the Senate to consider Mr. Kavanaugh’s serious misconduct without having to make myself, my family, or anyone’s family vulnerable to the personal attacks and invasions of privacy we have faced since my name became public.”

Upon revelation of Ford’s identity, many Republican senators and supporters were convinced that she had cried wolf, emphatically stating that the allegations played into the Democrats’ agenda of blocking right-wing SCOTUS nominations. Others were more empathetic, lending credit to Ford’s highly credible written testimony.

After Dr. Ford testified in person, there seemed to be little doubt regarding her credibility. Ford delivered an incredibly compelling account of the events which occurred during her high school encounter with Kavanaugh; Senate members on both sides of the aisle were visibly shaken. With tears shed and hearts wrenched, it seemed inevitable that Kavanaugh’s confirmation would be struck down.

During the televised broadcast of Dr. Ford’s testimony, many Republicans outside the Judiciary Committee felt as though the nomination had been lost. Senator Mitch McConnell, however, did not lose faith. “We’re only at halftime.” Senator McConnell said to a group of despondent Republicans, inelegantly using phrasing so often reserved for the world of sports and play.

At the same time, Kavanaugh was receiving instruction from Donald F. McGahn II, President Trump’s White House counsel. According to the New York Times, Mr. Mc- Gahn assured Kavanaugh that the only way to save his nomination was to channel his outrage and indignation at the charges facing him. As the world would soon see, this was no difficult task for a man already brimming with bitterness and fury.

Heeding his counsel’s advice, Kavanaugh’s testimony managed to evoke the same rage and indignation from many republicans, who blamed the Democrats for orchestrating a smear campaign against Kavanaugh. Speaking across the aisle, Republican senator Lindsey Graham of South Carolina said:

“Boy, you all want power. God, I hope you never get it. I hope the American people can see through this sham. That you knew about it and you held it. You had no intention of protecting Dr. Ford; none.”

Now addressing Kavanaugh: “She’s as much of a victim as you are. God, I hate to say it because these have been my friends. But let me tell you, when it comes to this, you’re looking for a fair process? You came to the wrong town at the wrong time, my friend. Do you consider this a job interview?” “... To my Republican colleagues, if you vote no, you’re legitimizing the most despicable thing I have seen in my time in politics. You [democrats] want this seat? I hope you never get it.”

Within a matter of minutes, the anger expressed by Kavanaugh and the Republicans of the committee were enough to turn the tides of rage against the innocent - against Dr. Christine Blasey Ford.

Members of the Senate on both sides of the aisle continued to question Kavanaugh, but the atmosphere had clearly changed. In a surprise gesture of good faith, Republican Senator Jeff Flake reached across party lines and called for an FBI investigation into the claims of Dr. Ford and the two other accusers, Julie Swetnick and Deborah Ramirez.

The investigation did occur, though it appeared to be very limited in scope - the FBI interviewed only a small number of those who volunteered to endure the bureau’s scrutiny. Notably, the FBI failed to interview Dr. Ford, Mr. Kavanaugh, Ms. Swetnick, and a number of individuals from both Dr. Ford’s and Mr. Kavanaugh’s past whom had offered to participate in the FBI’s investigation.

Upon receiving the results of the FBI’s investigation, Republicans and Democrats both indicated that the report contained no additional corroborating information. While Republicans largely took this as an indication of invalidity with regards to Dr. Ford’s testimony, Democrats saw the result of an investigation which had clearly been limited in scope. In a press briefing, Democratic Senator Feinstein said:

“Candidly... [the report] looks to be the product of an incomplete investigation that was limited, perhaps by the White House - I don’t know - but the White House certainly blocked access to millions of documents from Judge Kavanaugh’s record... And ensured that 90% of his emails and memos weren’t available for the Senate or the public in the hearings. It now appears that they also blocked the FBI from doing its job. Democrats agreed that the investigation’s scope should be limited. We did not agree that the White House should tie the FBI’s hands.”

Republican Senator Flake had a much shorter commentary:

“We’ve seen no additional corroborating information”, noting that he needed to finish reviewing the materials. Many Senators added that they had not finished reviewing the materials after commentary, owing to the fact that only one copy of the report was printed. The report was kept within a vault in a Sensitive Compartmented Information Facility, essentially limiting viewing to one Senator at a time; phones and note taking were not permitted inside the vault. A total of one hundred senators had access to the report and were given approximately 24 hours to view and process the information. Some may describe this format of viewing as restrictive.

The FBI report was delivered to Capital Hill at 2:30am Thursday morning, and the Senate Judiciary Committee met again on Friday. A motion to invoke cloture (an end to debate) was held on the first day, resulting in a 51-49 vote in favour. The final senate vote to confirm Kavanaugh’s nomination occurred the following day, with a 50-48 vote in favour (Republican Senator Steve Daines was absent, and Republican Lisa Murkowski voted “Present” rather than “Yes”). Kavanaugh was officially confirmed to the Supreme Court shortly after the final vote.