Supreme Court nominee Judge Brett Kavanaugh. (Photo: Diego M. Radzinschi / ALM)

Updated 11:45 a.m.

News of a “confidential letter” that  contains allegations of sexual misconduct against Supreme Court nominee Brett Kavanaugh comes as a harsh reminder that the path to a seat on the high court is not always smooth, even after the confirmation hearing is over.

The developing story of alleged long-ago misconduct by Kavanaugh, first made public on Thursday, seems to parallel what happened to Justice Clarence Thomas after his contentious confirmation hearing in 1991.

Rumors of misconduct by Thomas had circulated before the hearing, but it was not until afterward that Anita Hill’s claims of sexual harassment went public. A new hearing was arranged, and Thomas’ angry denial, followed by Anita Hill’s testimony, captivated the nation. Thomas was still confirmed, by a 52-48 vote.

With Kavanaugh, Sen. Dianne Feinstein, D-California, apparently was aware of the letter before last week’s hearing but did not act on it until Judiciary Committee Democrats met on Wednesday. She turned the letter over to the FBI, where it has been placed in Kavanaugh’s background file. Several media outlets reported that no FBI investigation into Kavanaugh has been launched as a result of the letter.

The New Yorker on Friday said the letter alleged that, “during an encounter at a party, Kavanaugh held her down and that he attempted to force himself on her.” The report said the alleged incident “had been a source of ongoing distress for her and that she sought psychological treatment as a result.”

In a statement on Friday, Kavanaugh said: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

“There are echoes of the painful 1991 Senate confirmation hearings for Clarence Thomas,” said Jane Mayer, co-author of “Strange Justice,” a 1994 book about the Thomas nomination, on Thursday night. “But one very big difference is that back then, [Sen.] Joe Biden [D-Delaware] was chairman of the Judiciary Committee and the rest of the committee members were male. This time, it is a female senator … who took the lead.” Mayer, a New Yorker staff writer, and Ronan Farrow co-authored the article released Friday morning.

A White House spokeswoman, Kerri Kupec, derided the Democratic maneuvering as an “eleventh hour attempt to delay” Kavanaugh’s confirmation, which is set for a Senate committee vote on Sept. 20.

“Throughout his confirmation process, Judge Kavanaugh has had 65 meetings with senators—including with Senator Feinstein—sat through over 30 hours of testimony, addressed over 2,000 questions in a public setting and additional questions in a confidential session,” Kupec said in a statement. “Not until the eve of his confirmation has Senator Feinstein or anyone raised the specter of new ‘information’ about him.”

The Senate Judiciary Committee on Friday released a letter from 65 women who said they knew Kavanaugh during his high school years at Georgetown Preparatory, the all-boys school in Rockville, Maryland, he attended between 1979 and 1983. “For the entire time we have known Brett Kavanaugh, he has behaved honorably and treated women with respect,” according to the letter writers, many of whom said they attended all-girls high schools in the area.

The Kavanaugh kerfuffle could turn into a minor bump in the road—unless the allegations are so serious that senators in the #MeToo era decide they have to confront the situation. A key difference between the Thomas proceedings and Kavanaugh’s is that Republicans now call the shots in the Judiciary Committee and the entire Senate.

Feinstein’s statement Thursday about the matter said the individual at the center of the letter “strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision.”

Other nominees who preceded Kavanaugh in being nominated for the same seat he is expected to occupy have run into other kinds of trouble.

President Ronald Reagan named Robert Bork to succeed Justice Lewis Powell Jr. in 1987, but a combination of Bork’s conservative stances and his imperious demeanor during the hearing scuttled his nomination by a 42-58 vote. Next up was Douglas Ginsburg, who withdrew before his hearing began because of reports that he smoked marijuana when a professor at Harvard Law School. Reagan then nominated Anthony Kennedy, who was confirmed by a unanimous vote and served until July of this year.

Coincidentally, Bork, Ginsburg and now Kavanaugh all hailed from the U.S. Court of Appeals for the D.C. Circuit, as does onetime Obama pick Merrick Garland, whose nomination was blocked by Republicans in 2016. Other ill-fated nominees include Nixon appointees Clement Haynsworth Jr. in 1969 and G. Harrold Carswell in 1970.

Not all last-minute revelations about justices end in defeat or withdrawal.

The Senate confirmed Hugo Black in 1937 by a 63-16 vote and Black and his wife promptly went on a European vacation. While he was away, the Pittsburgh Post-Gazette published an investigative report about Black’s involvement with the Ku Klux Klan.

When he returned to the United States, Black gave a nationwide speech on NBC Radio to acknowledge he had been a member years before but had no recent connections with the Klan. The controversy died down, and Black served on the court as a liberal justice until 1971.

And then there was Henry Brown, who shot an intruder at his home in Detroit soon after he was nominated to the Supreme Court in 1890. That was a time when no hearings were held for nominees, and the shooting did not keep Brown from being reported favorably by the Judiciary Committee and confirmed by the Senate by acclamation. He went on to write the majority opinion in the reviled decision Plessy v. Ferguson in 1896.

 

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