Politcal Science House

Senators are set to hold a ‘cloture vote’ to confirm Brett Kavanaugh's nomination to the Supreme Court. (Photo by Gineen Abuali)

The nomination of Judge Brett M. Kavanaugh to the Supreme Court of the United States has been one of the most hotly debated topics in the country. It was announced on July 9, 2018 that President Donald Trump had nominated Kavanaugh to become the next associate justice of the Supreme Court, a seat which he will serve for life if his nomination is confirmed.

A nominee for the Supreme Court cannot become an associate justice unless his nomination is confirmed by the Senate Judiciary Committee, which is tasked with investigating and confirming the president’s judicial nominees. The committee began Kavanaugh’s public hearings on Sept. 4, 2018.

From the onset of the hearings, there were many difficulties. According to Kevin Cope and Joshua Fischman, two research professors of law and politics at the University of Virginia, “In every policy area, Kavanaugh had the most conservative or second-most conservative voting record on the D.C. Circuit,”Courts, and this concerns many Democrats who are aware that his confirmation would give conservatives on the Supreme Court a greater majority. This concern is also heightened by past allegations against Kavanaugh of partisanship, favoring one political party over the other.

Opponents of Kavanaugh’s confirmation are also troubled by the lack of records they were provided about his time in the Bush administration.

Political science Professor Alain Sanders of Saint Peter’s University explains that the lack of documents presented is due to pure partisanship.

“There’s always the possibility, in an election, that the majority party might lose its majority so Republicans do not want to take that risk,” said Sanders. “The Democrats are saying they need the time to consider all these documents; it’s not a matter of just releasing them, but Democrats are also arguing for time because of the upcoming elections. The records are records pertaining to his years in the Bush administration, and the president can assert executive privilege over those materials.”

When the hearings did begin, Kavanaugh refused to answer hypothetical questions about topics that might come before the Supreme Court. Such questions included topics like abortion, marriage equality, and Trump. Kavanaugh argued that previous Supreme Court justices have declined to answer as well.

“That’s a long standing tactic that all judicial nominees had said. I think it’s an escape hatch. It’s an unfortunate game that’s played,” said Sanders. “Everybody knows that a Republican president wants a conservative justice and a Democratic president wants a more liberal justice. That’s not a secret. That’s why these hearings are being held.”

Despite these concerns, Kavanaugh was still expected to receive the nomination with a vote to be held on Sept. 17. Then, on Sept. 16, 2018, Professor Christine Blasey Ford of Palo Alto University publicly came forward with allegations of sexual assault against Kavanaugh.

According to Dr. Ford, Kavanaugh sexually assaulted her at a party in high school, in an incident that she believes could have led to rape had one of his friends not interrupted.

Dr. Ford and many Democrats of the Senate Judiciary Committee have called for the Federal Bureau of Investigation (F.B.I) to investigate her claims, but Republicans argue that the Democrats previously knew about the allegations. They believe the release of these allegations on the eve of Kavanaugh’s confirmation is just a political ploy to stall the hearings until after the Nov. 6 midterm elections, where Democrats will attempt to regain a legislative majority.

Sexual assault is not a federal crime, so it is unlikely that the F.B.I. will investigate, unless it is requested by the president to do so. Chairman Chuck Grassley has delayed the vote, and he invited both Dr. Ford and Kavanaugh to appear before the Senate Judiciary Committee on Monday, Sept. 24. Dr. Ford and her lawyer still believe that the F.B.I. should investigate, but Grassley has given Dr. Ford until the morning of Friday, Sept. 22, which was then extended to Saturday, Sept. 22, to decide if she will attend the hearing.

Sanders explains that this nomination is particularly political because it has brought back bitterness from President Obama’s term.

“Democrats are fuming over the Republican refusal to even consider President Obama's nomination of Merrick Garland to the Supreme Court. The Republican Senate majority refused to even hold hearings or consider the nomination in any way, arguing on the basis of pure and unprecedented politics that the nomination should be left to the next president.”

Whether or not Dr. Ford decides to attend the hearing, her serious allegations against Kavanaugh will be used as a strategy to further politicize an issue that has been brewing for years. Even if Kavanaugh is not confirmed because of her allegations, the Senate will continue to be divided when it is time to confirm another Supreme Court justice.

Professor Sanders sees only one solution when it comes to depoliticizing the confirmation of justices.

“One of the reasons that these things are so political is because Supreme Court justices are appointed for life. Some presidents, just by sheer luck, get to appoint a lot of justices,” said Sanders. “So, many people would say, and I say, that justices should be appointed on fixed terms so that every president will get to appoint justices.”

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