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The Unprecedented Presidency: Supreme Court Nominees

When George Washington selected John Jay of his appointment as the first justice (Chief Justice) of the United States Supreme Court, Jay was notified by letter and when it came to appointments to the court, Congress largely relied on the recommendation of the President. Jay was unanimously confirmed by the Senate two days after his nomination was submitted. Today, 230 years after Jay's confirmation, candidates for appointment to the court undergo severe scrutiny of not only their judicial record, but also of their personal life and their actions as teenagers. This point was illustrated when President Donald Trump's nomination of Judge Brett Kavanaugh to the Supreme Court was the subject of controversy over allegations that, as a 17 year old high school student, Kavanaugh had attempted to force himself on a younger female student while intoxicated. Kavanaugh vigorously denied the allegations as Kavanaugh's confirmation hearings became a public spectacle.



On June 27, 2018, Associate Justice Anthony Kennedy announced his retirement from the Court, after having sat as a member of the court for over 30 years. His resignation took effect on July 31, 2018. Kennedy was considered to be a moderate or "swing" vote on the court and speculation was that he would be replaced by a member with a conservative ideological bent, tipping the balance on the court.

From 1993 to 1994, Kavanaugh served as a law clerk for Justice Kennedy. He previously served as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit and as a staff lawyer for various offices of the U.S. government. Kavanaugh graduated from Yale University with a degree in American history. He obtained his law degree from that institution in 1990. After graduating from Yale Law School, he began his career as a law clerk working under Judge Ken Starr. He worked under Starr at the Office of Independent Counsel, and worked on various investigations concerning President Bill Clinton, including the drafting of the Starr Report, which called for Clinton's impeachment. After the 2000 U.S. presidential election he worked for the George W. Bush campaign in the Florida recount. He worked as a White House Staff Secretary and one of his jobs was to identify and confirm judicial nominees.

Kavanaugh was nominated to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush in 2003. His confirmation hearings were contentious. They were held up for three years over charges of partisanship. He was ultimately confirmed to the D.C. Circuit in May 2006 after a series of negotiations between Democratic and Republican U.S. Senators.

Kavanaugh was officially announced as President Donald Trump's nominee for Associate Justice of the Supreme Court of the United States on July 9, 2018. President Trump touted Kavanaugh's "impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law". President Trump said, "what matters is not a judge's political views, but whether they can set aside those views to do what the law and the Constitution require."

The American Bar Association (ABA) gave Kavanaugh a unanimous "well qualified" rating for his nomination. After Kavanaugh was accused of sexual impropriety, the president of the ABA issued a statement asking that the nomination should not be voted on until the allegations have been investigated by the FBI. On October 5, 2018, the chairman of the ABA Standing Committee on the Federal Judiciary announced that the committee had reopened its evaluation "regarding temperament" and that reassessment and re-vote would not be completed before the Senate vote. After Kavanaugh’s confirmation, the standing committee discontinued the re-evaluation because the issue was then moot.

Yale Law School's professor Akhil Reed Amar, a leading expert on Constitutional Law, called the nomination of Kavanaugh Trump's "finest hour, his classiest move". Amar said that Kavanaugh "commands wide and deep respect among scholars, lawyers, and jurists". Robert S. Bennett, who represented President Bill Clinton during the Lewinsky scandal (opposite Kavanaugh), stated that he supported Kavanaugh's confirmation.

The American Civil Liberties Union complained that Kavanaugh's record "demonstrates hostility to international law as a constraint on government action as well as an unwillingness to hold the government to account when it violates the constitutional and human rights of U.S. citizens and noncitizens". Further opposition came from many groups mainly on the left of the political spectrum.

Kavanaugh's nomination was officially sent to the Senate on July 10, 2018. Senate Judiciary Committee Chairman Chuck Grassley announced on August 10 that the hearings would occur prior to the November midterm elections, from September 4 through September 8. The Senate Judiciary Committee confirmation hearings began at 9:30 AM, September 4, 2018, in the Hart Senate Office Building with the first hearing chaired by Senator Chuck Grassley (R-Iowa). The hearing was interrupted by protesters. Senator Kamala Harris also interrupted Senator Grassley's opening statement.

The second day of the hearing began with the Senators asking direct questions at Kavanaugh about his personal position on cases and on his record. Of interest were his judicial philosophy, Roe v. Wade, and his role in programs implemented after 9/11 by the Bush administration. Interruptions from protestors continued.

The third day of the hearing saw Kavanaugh answering questions about President Trump's attacks on the federal judiciary. On the fourth day, outside witnesses in support or dissent of Judge Kavanaugh being appointed to the Supreme Court gave testimony to the committee on their position.

On September 12, 2018, days after the end of four days of confirmation hearings, the existence of a complaint against Kavanaugh, by a "woman, who has asked not to be identified", was made public. The as-yet unnamed complainant accused Kavanaugh of trying to force himself on her when they were both in high school. She said the incident happened in 1982, when he was 17 and a student at Georgetown Preparatory School, and she was a 15-year-old high school student. The woman stated that she later required treatment for psychological distress. Kavanaugh issued a statement in which he said, "I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time."

On September 16, the complainant's identity became known. Christine Blasey Ford, a professor at Palo Alto University, was named by The Washington Post as the person making these allegations against Kavanaugh. She told the Post that in the early 1980s, when she and Kavanaugh were teenagers, Kavanaugh and his classmate Mark Judge "corralled" her in a bedroom at a party in Maryland. According to Ford, Kavanaugh pinned her to the bed, groped her, ground against her, and tried to pull off her clothes. She said that he covered her mouth when she tried to scream, and that she was afraid that Kavanaugh "might inadvertently kill me" during the incident. She said that she got away when Judge jumped on the bed, knocking them all over.

Ford said she later discussed the incident during couples counseling with her husband in 2012. She consented to having the therapist's notes released on September 16, 2018. They state that said told her therapist that she had stated that she was assaulted by students "from an elitist boys' school", who eventually became "highly respected and high-ranking members of society in Washington". The notes do not name Kavanaugh.



An additional hearing was held on the subject of the sexual abuse allegations. Only two witnesses testfied: Kavanaugh and Ford. Republican members of the committee decided not to question the witnesses directly and yielded their allotted time to Rachel Mitchell, a prosecutor from the Maricopa County Attorney's Office in Phoenix, where she heads the Special Victims Division, which covers sex crimes and family violence. Mitchell questioned Ford in five-minute segments, alternating with five-minute segments from the Democratic members of the committee.She did not question Kavanaugh, as most of the Republicans took back their time and used it to defend Kavanaugh.

Ford gave an opening statement about the accusations and the events that transpired during and after the alleged sexual assault. She later told Mitchell that she was "100 percent certain" that it was Kavanaugh who assaulted her. Kavanaugh repeated his earlier denials of the accusations against him and angrily blamed them on partisanship. Senator Lindsey Graham delivered a "prolonged attack" on the Democratic members of the committee

The Senate Judiciary Committee had been scheduled to vote on the confirmation on September 20 to determine whether the nomination would go to the full Senate for a vote. The White House said it would not withdraw its nomination. Ford and Kavanaugh testified before the Committee on September 24. At the conclusion of that hearing the Republican leadership of the committee indicated that they planned to hold a committee vote on the nomination the next day, September 28, with a procedural vote on the Senate floor on September 29. On September 28, the committee voted along party lines to advance the nomination to the full senate, but Senator Jeff Flake's vote in support was conditional on a proposal that the vote be delayed for a week to allow investigation of the current claims by the FBI. Senators Joe Manchin and Lisa Murkowski also said they would not vote to confirm without an FBI investigation. On September 28, the Senate Judiciary Committee said there would be a "supplemental FBI background investigation" to be limited to the current allegations and had to be completed within one week. President Trump then ordered the FBI to conduct such the supplemental background investigation. On October 1, The New York Times reported that the White House had authorized the FBI to interview "anybody they want within reason".

Kavanaugh published an op-ed in the Wall Street Journal in which he said that he might have been too emotional at times in part due to his overwhelming frustration at being wrongly accused, but that going forward he would be an independent, impartial judge.

For Kavanaugh to be confirmed, he needed to receive a majority vote in favor of confirmation from the full Senate. On October 5, the Senate voted 51–49 for cloture, advancing the nomination to a final floor vote on October 6. The vote was almost entirely along party lines, with the exception of Democrat Joe Manchin voting yes and Republican Lisa Murkowski voting no.

President Trump commented on the initial sexual assault allegation against Brett Kavanaugh for the first time on September 17, 2018, saying, "Judge Kavanaugh is one of the finest people that I've ever known. He's an outstanding intellect, an outstanding judge, respected by everybody. Never had even a little blemish on his record. The FBI has, I think, gone through a process six times with him over the years, where he went to higher and higher positions. He is somebody very special." On September 20, at a Las Vegas rally, Trump again strongly endorsed Kavanaugh, telling his audience: "Brett Kavanaugh is one of the finest human beings you will ever have the privilege of knowing or meeting."

Politico reported that former Democratic staffer Ricki Seidman was serving as an adviser to Ford; Seidman had previously assisted in prepping Anita Hill in her testimony against Clarence Thomas. Her involvement was criticized by the Republican National Committee who stated in a press release. "If you're concerned about an appearance of partisanship, hiring a Democratic operative with a history of smearing conservative judges doesn't exactly mitigate that."

Senator Lindsey Graham called Kavanaugh the victim of "the most unethical sham" he had seen in his time in politics, claiming that if Kavanaugh was looking for fair process, he "came to the wrong town at the wrong time".

Hours after his Senate confirmation, Kavanaugh was sworn in at a private ceremony, followed by a public ceremony in the White House on October 7. Chief Justice John Roberts administered the constitutional oath and retired Justice Anthony Kennedy administered the judicial oath. Also in attendance were Kavanaugh's wife, children and parents and four of the sitting Judges. Three were unable to attend due to previous engagements. President Trump apologized to Kavanaugh and his family for "the terrible pain and suffering you have been forced to endure", calling the Senate hearing "a campaign of political and personal destruction based on lies and deception." Kavanaugh thanked his family, friends, and those that had supported his nomination. He thanked President Trump for his "steadfast and unwavering support". He also thanked the only Democrat who voted for him, Sen. Joe Manchin III of West Virginia. He closed saying, "As a Justice on the Supreme Court, I will always strive to preserve the Constitution of the United States and the American rule of law."



The controversy surrounding Kavanaugh's nomination was compared to an earlier nomination, that of current Supreme Court Justice Clarence Thomas by President George H. W. Bush in 1991. Bush nominated Thomas to succeed Thurgood Marshall, a long-time reliable liberal vote. Thomas, the former head of the Equal Employment Opportunity Commission (EEOC), faced heavy opposition in the Senate, as well as from pro-choice groups and the NAACP. His nomination faced another difficulty when Anita Hill accused Thomas of having sexually harassed her during his time as the chair of EEOC. Thomas won confirmation in a narrow 52-48 vote. 43 Republicans and 9 Democrats voted to confirm Thomas's nomination, while 46 Democrats and 2 Republicans voted against confirmation. Thomas went on to become one of the most conservative justices of his era.
Tags: bill clinton, donald trump, george w. bush, george washington, supreme court
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