Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh in the Justices’ Conference Room, Supreme Court Building. Mrs. Ashley Kavanaugh holds the Bible.
Credit: Fred Schilling, Collection of the Supreme Court of the United States.

The U.S. Senate’s confirmation of Supreme Court nominee Brett Kavanaugh on Saturday, after an acrimonious fight over claims he committed sexual assault, lied about his drinking habits as a young adult and demonstrated unfit temperament in a partisan tirade directed at his opponents, marks a crowning achievement by conservatives to cement a solid 5-4 majority.

Kavanaugh’s elevation to the high court will fuel fears that the staunchly conservative judge will erode the landmark rulings on abortion, affirmative action, gay rights and the death penalty that were written by his more moderate predecessor, Justice Anthony Kennedy. Chief Justice John Roberts Jr., more conservative than Kennedy, now becomes the new center of the court.

The 53-year-old Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006, earned a narrow 50-48 victory on Saturday afternoon, the sharpest divide for a Supreme Court nominee in modern times. Protesters shouted as the vote was taken, interrupting it several times.

Kavanaugh’s confirmation comes one week after the start of the new Supreme Court term and almost three months after his nomination. The justices’ docket is lined with technical disputes, but over the course of the next several months more cases—including some that could prove polarizing—will be added.

The emergence of sexual assault accusations against Kavanaugh during his Senate hearings ignited a national confirmation imbroglio not experienced since Justice Clarence Thomas faced sexual harassment charges after his 1991 nomination to the Supreme Court. Kavanaugh vehemently denied claims he sexually assaulted a fellow high school student at a house party in the 1980s.

Kavanaugh will take the bench as an associate justice under the cloud of unresolved sexual misconduct accusations, much as Thomas did 27 years ago. Questions about his independence and neutrality following his partisan defense against those accusations are sure to follow him for months, if not years. Kavanaugh claimed the sexual misconduct allegations were part of an “orchestrated” political campaign by Democrats who were upset with Donald Trump’s presidential victory and seeking revenge for the Clintons.

Less than 48 hours before a final Senate vote, as questions about his neutrality and judicial temperament increased, including from retired Justice John Paul Stevens, who called him unfit for the high court, Kavanaugh penned an op-ed article in the Wall Street Journal that walked back in general terms his angry, partisan tirade just a week earlier.

“I said a few things I should not have said” in trying to rebut the sexual misconduct allegations, Kavanaugh wrote. He vowed “to keep an open mind in every case” if confirmed but did not specifically retract or apologize.

In the closing days of the confirmation battle, more than 2,000 law professors signed a letter in which they urged senators to oppose the nomination. Kavanaugh “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land,” the law professors said.

Thousands of women marched in the Capital and in similar demonstrations around the country, to voice opposition to Kavanaugh. Millions of dollars were spent on televisions ads by organizations supporting or opposing Kavanaugh.

Demonstrators outside the U.S. Supreme Court on Thursday, Oct. 4, 2018, protest the nomination of Judge Brett Kavanaugh. (Photo: C. Ryan Barber/ALM)

The allegations relit the national conversation, begun by the #MeToo movement, about the risks women face in going public with sexual misconduct claims against powerful men. They also triggered an outpouring of support from friends and former clerks of Kavanaugh who testified to his integrity as well as overwhelming support for Kavanaugh’s accusers from women, civil rights groups and others.

‘Judicial temperament in spades’

Kavanaugh won the backing of many prominent lawyers in Washington who had worked with him, or appeared before him as a judge—and who will now represent clients before him as a justice. Lisa Blatt of Arnold & Porter, a self-described liberal feminist, wrote an op-ed expressing her support for Kavanaugh. Her push for Kavanaugh’s confirmation received blowback from progressives.

In casting a crucial vote, Republican Sen. Susan Collins of Maine on Friday cited Blatt’s endorsement in remarks on the Senate floor. Blatt, who introduced Kavanaugh at his confirmation hearing, has remained silent publicly about him since the emergence of sexual misconduct claims.

Gibson, Dunn & Crutcher partner Ted Olson and Kirkland & Ellis partner Paul Clement testified in support of Kavanaugh, as did Maureen Mahoney of Latham & Watkins.

“Judge Kavanaugh has judicial temperament in spades,” Clement said in his testimony. “He is respectful of counsel in both his demeanor and in his level of preparation and engagement. Nothing is more discouraging to litigants and attorneys than a cold or underprepared bench. There is no fear of that with Judge Kavanaugh.”

Kavanaugh won a “well qualified” ranking from the American Bar Association’s federal judiciary standing committee, but fresh questions about his temperament forced the review team to take a new look at the designation. The committee had not yet taken a new vote on Kavanaugh’s ranking at the time the Senate voted Friday to advance the nomination.

Even some current justices appeared to be concerned about the impact of Kavanaugh’s performance on public perception of the court. Without a direct reference to Kavanaugh, Justice Elena Kagan, speaking Friday at Princeton University, said: “It’s an incredibly important thing for the court to guard, is this reputation of being fair, of being impartial, of being neutral, and not being simply an extension of the terribly polarized political process and environment that we live in.”

’100 percent’ certain

Almost from the start, Kavanaugh’s nomination drew strong opposition from Senate Democrats, women’s groups, and environmental and civil rights organizations, because of his rulings on their issues as well as his broad view of executive power. Kavanaugh has expressed skepticism whether a sitting president can be charged with a crime, an issue that could come before the Supreme Court as the special counsel investigation of Trump and close associates continues.

Those overarching concerns were obscured when sexual assault accusations exploded into public view in a Washington Post article on Sept. 16.

Christine Blasey Ford, a research psychologist in California, alleged a teenage Kavanaugh pinned her to a bed at a party, tried to pull off her clothes and covered her mouth to stop her from screaming. She would testify, weeks later, that Kavanaugh’s laughter lingers in her memory years after the fact. Ford said she was “100 percent” certain Kavanaugh attacked her.

Kavanaugh had vehemently denied claims that he sexually assaulted anyone in high school or college, calling the claims “false and uncorroborated.” Trying to save his nomination, Kavanaugh, in an unprecedented step by a Supreme Court nominee, and his wife appeared on Fox News on Sept. 25, telling a national audience he was a champion of women and pleading for a “fair hearing” to defend himself.

At his re-opened confirmation proceedings, on Sept. 27, Kavanaugh’s testimony triggered new skepticism about his truthfulness in responses to senators’ questions about entries in his high school yearbook about drinking and inebriation while in college.

Kavanaugh had portrayed himself as a virtuous teenager—focused on sports, academics and friendships. He was uncomfortable talking publicly about his consumption of alcohol as a teenager and young adult. Kavanaugh denied drinking to the point he could not recall events from a prior night.

“In retrospect, I said and did things in high school that make me cringe now,” Kavanaugh said in a statement before the public hearing. His Yale undergrad friends would call Kavanaugh a liar for his portrayal that he did not drink to excess in college.

A planned final vote in the Senate was thrown off course when a key Republican, Sen. Jeff Flake of Arizona, said the FBI needed to investigate Ford’s claims before the Senate acted. Flake’s move, which stunned members of the judiciary committee, put pressure on the White House and Republican leaders, who agreed to the demand and set the FBI in motion to supplement its background investigation of Kavanaugh.

The FBI investigation itself became controversial when the White House and Senate Republican leaders appeared to significantly narrow its scope. Democratic senators challenged its thoroughness when it became clear that the FBI did not question Ford, Kavanaugh and other potential witnesses.

“The ‘investigation’ conducted over the past five days is a stain on the process, on the FBI and on our American ideal of justice,” Ford’s lawyers, Debra Katz of Washington’s Katz, Marshall & Banks and Michael Bromwich, said in an Oct. 4 letter to FBI Director Christopher Wray.

In 1991, Thomas was confirmed by a vote of 52-48 to the Supreme Court, the narrowest margin in a century—until the Kavanaugh vote Saturday. Kavanaugh could join the court Tuesday when the justices convene for oral arguments.

 

Read more:

Lisa Blatt’s Kavanaugh Endorsement Earns a Susan Collins Shoutout in ‘Yes’ Vote

Paul Clement Is Stoked for Brett Kavanaugh and the Term Ahead

Kavanaugh May Face Recusal Dilemmas If He’s Confirmed

Kavanaugh Didn’t Help Dispel Image of Justices as ‘Junior Varsity Politicians’

Ted Olson Is Fired Up Over ABA’s Kavanaugh Letter, Drops Membership