Brett Kavanaugh, during the confirmation hearing to the U.S. Supreme Court. Photo: Saul Loeb/ Bloomberg.

It’s over. Brett Kavanaugh was confirmed on Saturday by a vote of 50 to 48 as the 114th justice of the Supreme Court.

It makes you wonder—is this how confirmations are going to be from now on?

I’m with Ruth Bader Ginsburg, who said last month that “The way it was was right. The way it is is wrong.”

I do suspect that the next nominee—whether liberal or conservative—will be a woman. It’s not that a woman couldn’t be accused of sexually assaulting someone (see Asia Argento) but it’s certainly a lot less likely that plausible allegations of misconduct would emerge. In this context, a woman is a much safer pick.

Another takeaway is that Michael Avenatti’s star has dimmed, perhaps irreparably. Avenatti, who has expressed interest in a 2020 presidential run, represented Julie Swetnick, who said in an affidavit that she “witnessed efforts by … Kavanaugh … to cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room.”

Senator Susan Collins in justifying her vote to back Kavanaugh called Swetnick’s allegations “outlandish” and said her claim was “put forward without any supporting evidence.”

A series of articles has followed: “Did Michael Avenatti help doom the case against Brett Kavanaugh?” asked the Washington Post. “Democrats say Avenatti undercut their case against Kavanaugh” said CNN. “Mitch McConnell owes Michael Avenatti a gift basket,” opined the Washington Examiner. Chuck Todd on MSNBC said Michael Avenatti is ‘probably the best thing to happen to Brett Kavanaugh.’ Swetnick’s allegations are reminiscent of an anonymous lawsuit in 2016 against Donald Trump. A woman alleged that Trump raped her when she was 13, claiming that he forced her “to engage in various perverted and depraved sex acts,” which were then described in more detail than seemed necessary.

A week before the election, her lawyer Lisa Bloom (with great fanfare) announced that the plaintiff would come forward publicly, only to cancel at the last minute, citing fears for her client’s safety.

Who knows if the allegations were legitimate? Just as we don’t know if Julie Swetnick was telling the truth—but both made charges that were so eye-popping and unsubstantiated that for some, it made it harder to believe the other, less dramatic accusations. It all just seemed like a smear.

And that is a great pity.

The Hill in a post-mortem list of winners (Mitch McConnell, Senate Republicans, President Trump) and losers in the fight ended with the biggest loser of all: America.

No wonder. This fight was stomach-churning and angry and sad, and it’s left the high court further politicized.

When Kavanaugh was sworn in after the vote in a private ceremony by Chief Justice John Roberts and retired Justice Anthony Kennedy, he took an oath: To “administer justice without respect to persons, and do equal right to the poor and to the rich … and impartially discharge and perform all the duties incumbent upon me.”

For the sake of our country and the rule of law upon which it rests, may he honor it fully and faithfully.

Read more:

 Brett Kavanaugh, Neutrality Questioned, Ascends to Supreme Court Kavanaugh Breaks Ground for Future Campaigning by Supreme Court Nominees Kavanaugh Didn’t Help Dispel Image of Justices as ‘Junior Varsity Politicians’

 


We hope you enjoyed this excerpt from Litigation Daily, the exclusive source for sharp commentary on mega court battles, winning strategies and the issues that obsess elite litigators. Click here to subscribe.