The Senate confirmed Judge Brett Kavanaugh to the Supreme Court on Saturday on a 50-48 vote, the slimmest margin for any modern justice, reflecting the deep divide within the country on a nomination that broke on the question, “Who do you believe?”
Kavanaugh’s replacement of Justice Anthony Kennedy, a conservative who sided with liberals on high-profile cases regarding the right to an abortion and gay marriage, is expected to cement the conservatives’ majority on the Court for years to come. But it also exposed that when faced with a question without a definitive answer, the vast majority of Democrats and Republicans in the Senate chose their own truth.
After Christine Blasey Ford came forward to claim that Kavanaugh groped and pinned her to a bed over 30 years ago while they were teenagers in high school, nearly all Senate Democrats sided with the woman and nearly all Republicans the man. It was no longer a fight over ideology but character.
Democrats said Ford, a California psychology professor, was credible, that she gained nothing by coming forward, and that she was to be believed. Republicans said no one corroborated her story, and Kavanaugh, a 12-year veteran of the D.C. Circuit Court of Appeals, was eminently qualified to serve on the Supreme Court.
But the facts of the case were never fully understood. A hearing, featuring only Ford and Kavanaugh, essentially provided a “he said, she said” account. And a weeklong FBI background check was not released to the public and would not have reached a firm conclusion about the case.
“The politically charged atmosphere surrounding this nomination has reached a fever pitch even before these allegations were known, and it has been challenging even then to separate fact from fiction,” said Sen. Susan Collins, Republican of Maine. Considered a swing vote, Collins voted for Kavanaugh, saying, “the allegations fail to meet the 'more likely than not' standard.”
Last week, Kavanaugh perhaps saved his nomination with an angry and partisan testimony that thrilled President Trump, who had grown frustrated up until that point with those managing the confirmation process. But Kavanaugh’s testimony, in which he said that the “calculated and orchestrated political hit” against him was "revenge on behalf of the Clintons,” also hurt him, drawing criticism that he would not be, as he so often claimed, an “independent” and “impartial” judge on a “team of nine.” While the public was sharply split, a plurality of Americans believed Ford over Kavanaugh, according to recent polls.
Sen. Lisa Murkowski of Alaska, the only Republican to oppose him, said the allegations would undermine the “public confidence” of the Court, citing from the code of judicial conduct.
“The standard is that a judge must act at all times in a manner that promotes public confidence in the independence, integrity, [and] impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety,” Murkowski said. “After the hearing that we all watched last week … it became clear to me—or was becoming clear—that that appearance of impropriety has become unavoidable.”
In the end, Murkowski voted “present” on Kavanaugh to pair with, or offset, GOP Sen. Steve Daines, who missed the vote to attend his daughter’s wedding in Montana. Sen. Joe Manchin of West Virginia was the only Democrat to vote in favor of Kavanaugh.
The first round of Senate hearings probing Kavanaugh’s views on everything from antitrust issues to executive power, yielded little clarity, in keeping with the past several Supreme Court confirmation hearings, where nominees assert that it would be improper to hint how he or she would rule in future cases.
Democrats delayed the first hearing for hours, charging that they were able to review only a limited portion of Kavanaugh’s record, particularly from his work as a counsel and high-ranking staffer in the George W. Bush White House. Afterwards, they said he misled the committee on matters ranging from his work on controversial judicial nominees to whether he knew he reviewed documents improperly taken from Democrats on Capitol Hill. Kavanaugh denied any wrongdoing.
The second round could not have been more different, except in that it also provided little new evidence. Instead of questions regarding abortion and guns, Kavanaugh faced, and firmly denied, allegations about whether he sexually assaulted or exposed himself at a party in high school and another in college.
Democrats again criticized Republicans for preventing potential corroborating evidence to emerge. They said Kavanaugh again misled the committee. And Republicans again pushed back in personal attacks, questioning whether Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, leaked Ford’s allegations to the press despite her desire for confidentiality. Feinstein denied it.
In another instance, after Sen. Richard Blumenthal, Democrat of Connecticut, questioned Kavanaugh’s credibility, Sen. Tom Cotton, Republican of Arkansas, tweeted that his colleague “lied for years” about his military record. Blumenthal's office said at the time it was "not worth dignifying with a response."
Democrats also called on Kavanaugh himself to ask for a FBI background check that could interview more people and get to the bottom of what happened.
“The terrible and hard part of this is, when we get an allegation, we’re not in a position to prove it or disprove it, therefore we have to depend on some outside authority for it,” Feinstein said at the hearing. “And it just seems to me then when these allegations came forward, that you would want the FBI to investigate those claims, and clear it up once and for all.”
Kavanaugh did not call for the FBI to investigate the claims of the women, but Trump allowed one after a few wavering Republicans pushed for it.
Still, the one-week inquiry interviewed nine people—including five who Ford alleged were at the high school party in 1982, and Deborah Ramirez, who alleged that Kavanaugh drunkenly exposed himself at a party in college. No one corroborated the women’s allegations, but Democrats criticized the process as designed to be narrowly focused to push through the nominee as quickly as possible.
“This was not a search for the truth,” said Sen. Kamala Harris, Democrat of California, on Friday. “Instead, this was about politics and raw power to push through an unfit nominee.”
Majority Leader Mitch McConnell said the Senate would vote not just on a Supreme Court nomination but on whether the chamber still holds that facts have meaning.
“We will either state that facts and evidence can simply be brushed aside when politically inconvenient, and signal that media bullying and mob intimidation are valid tactics for shaping the Senate,” McConnell said. “Or we will stand up and say that serious, thoughtful, fact-based deliberation must still define this body.”
Minority Leader Chuck Schumer responded that “brave women came forward to speak truth to power.” He said Kavanaugh “deliberately avoided” talking about his views on Roe v. Wade and health care, evaded the committee in the first round of hearings on a range of subjects, and then gave the “bitterest partisan testimony I have ever heard from a candidate seeking the Senate’s approval” in defending himself from allegations of sexual misconduct. He urged Republicans to evaluate his character.
“If you have doubts about Judge Kavanaugh’s credibility, about his ability to tell the truth, about his ability to be impartial and nonpartisan—no matter what you think of his jurisprudence or what he may or may not have done in high school and college—you should not vote to confirm him to the Supreme Court,” Schumer said.