Kavanaugh on Supreme Court Despite Serious Concerns

On Saturday October 6, 2018, The US Senate voted 50-48 to confirm Brett Kavanaugh to the US Supreme Court. (One absent, one voting “present”.)  He was sworn in that same evening. He re-took his oath at the White House Monday evening. Many previous justices have chosen to not take their oath at the White House, as a symbol of their independence from the president who nominated them.

Kavanaugh was confirmed despite having lied to the Senate multiple times while under oath during his nomination process. Several judicial ethics complaints were filed against Kavanaugh after his initial testimony before the Senate Judiciary Committee, questioning his honesty and judicial temperament. 

Judge Karen LeCraft Henderson, of the U.S. Court of Appeals for the D.C. Circuit, determined that while a few were frivolous, more than a dozen were too serious to be handled by Kavanaugh’s fellow judges on the DC Circuit. These complaints were instead passed on to the Supreme Court Justice who reviews such complains for the circuit: Chief Justice John Roberts. (Judge Henderson reviewed the complaints after Kavanaugh’s superior, Chief Judge Merrick Garland, recused himself to avoid any appearance of impropriety.)

Roberts then sat on the complaints, refusing to review them or refer them for review. It should be noted that Roberts has a serious conflict of interest. Kavanaugh was a member of the team at the (George W.) Bush White House who selected Robert to be the nominee for Chief Justice. Kavanaugh was also a “feeder” judge for Roberts, with many of Kavanaugh’s clerks moving on to clerk for Roberts.

Of course, there were also the disturbing revelations about Kavanaugh’s past heavy drinking and sexual assault. At least three women made credible claims of assault against him, and 3-4 others have also come forward.  His high school yearbook page turned out to be full of references to extremely heavy (underage) drinking and insulting references to “easy” girls. Several dozen people who knew him at the time have come forward to say he lied under oath about his drinking and sexual exploits.

In the Judiciary Committee hearing where Dr. Blasey Ford and Kavanaugh addressed the sexual assault accusation, Kavanaugh came out yelling, screaming, and crying. He ranted about a conspiracy against him by assorted groups (including the Clintons)  and threatened that once he was on the bench, “what goes around, comes around”. He was rude to the Senators questioning him. At one point, instead of answering a direct question he demanded to know - twice - if Senator Amy Klobuchar of Minnesota had ever been blackout drunk. 

While a last-minute FBI “investigation” was ordered as a condition of him nomination getting out of committee, the FBI was severely constrained. They were given a time limit of one week, and they were forbidden by the White House to speak with: Dr. Blasey Ford; any of the people who had come forward to corroborate her story; all but one of his other accusers; Kavanaugh himself; former employers of Kavanaugh’s friend Mark Judge (which could have confirmed part of Blasey Ford’s recollections); or any of the people who had come forward with information about his actions at the time. 

Of course with constraints like that, they were unable to come to any conclusion as to what had happened.

The voting process was begun before any of the Senators had even reviewed the FBI’s statement. When it was made available, there was only one copy for all 100 Senators to review, over a period of four hours total.   Majority Leader McConnell got one hour to review it, then Minority Leader Feinstein got her hour, then all of the other Republicans were allowed to look at the one copy for an hour, and finally all the Democrats were allowed one hour for all of them to read the one copy. 

Meanwhile, the American Bar Association began a review of Kavanaugh, the Dean of Yale Law School  concurred with the need for an investigation, the Jesuit paper “America” rescinded their endorsement, over 2,400 law professors from around the country signed a petition opposing Kavanaugh, over 100 civil rights groups came forward to oppose his nomination, and even the ACLU broke their tradition of remaining neutral in judicial races (for only the 4th time in 98 years) to oppose Kavanaugh.

One has to ask: Why the rush to confirm such a flawed nominee as Brett Kavanaugh? And why now? 

Most previous presidents would have withdrawn their nomination and chosen someone else. Kavanaugh is no great legal scholar; not even his most ardent supporters make that claim. His opinions are frequently counter to the majority, and in opposition to decided law. His temperament is in question, his honesty is in question, and he’s being investigated by the ABA. His finances are suspicious - hundreds of thousands of dollars in debt that simply disappeared almost overnight just before his nomination, $92,000 country club fees, a mystery $245,000 down payment on his $1.25 million house.

But Republicans decided to rush him through, despite all that.

(Trivia note: You have to go back to 1881 to find a vote that close on a Supreme Court nominee. Stanley Matthews got his seat on a 24-23 vote.)

For more information:

D.C. Circuit sent complaints about Kavanaugh’s testimony to Chief Justice Roberts (Washington Post, 6 Oct 2018)

The Senate Should Not Confirm Kavanaugh,  Signed, 2,400+ Law Professors (Opinion, New York Times, 3 Oct 2018)

The Many Mysteries of Brett Kavanaugh’s Finances (Mother Jones, 13 Sept 2018)

Why the ACLU Opposes Brett Kavanaugh's Nomination to the Supreme Court (ACLU, 3 Oct 2018)

‘Moral dry-rot’: The only Supreme Court justice who divided the Senate more than Kavanaugh (Washington Post, 8 Oct 2018)

Brett Kavanaugh, disrobed (Dana Milbank, OpEd, Washington Post, 27 Sept 2018)

Brett Kavanaugh’s angry opening remarks draw widespread criticism online "If you couldn't imagine an angry, drunk Kavanaugh before, you can now.” (Think Progress, 27 Sept 2018)

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