The confirmation of Brett Kavanaugh to the Supreme Court on Saturday might close one of the Senate’s most bitter and divisive chapters, but the resulting discord is bound to reverberate for years at the high court, in the halls of Congress and at the ballot box.
The 50-48 vote gives President Donald Trump his second Supreme Court appointment in as many years and solidifies the court’s conservative tilt for decades. The confirmation battle at first raged over the court’s ideological balance, then turned to questions of temperament, truthfulness and how the Senate handled allegations of sexual misconduct in the “Me Too” era.
Through it all, Kavanaugh did not step back from his unyielding commitment to a conservative legal approach on gun rights, presidential power, health care and the environment and regulatory issues. Legal experts say it is not a matter of whether access to abortion will be diminished with Kavanaugh on the bench, only how quickly it happens.
Kavanaugh, 53, fills the vacancy of Justice Anthony M. Kennedy, who stepped down in July after spending the last decade as the so-called swing vote who sometimes sided with liberals on issues such as abortion, affirmative action and LGBT rights. Kavanaugh, who has been a federal appeals court judge in Washington for 12 years, is not expected to be such a swing vote.
The closest thing to Kennedy now will be Chief Justice John G. Roberts Jr., whose desire to maintain the court’s reputation as nonpartisan led him to side with liberal justices to save the 2010 health care law, legal experts say. Roberts and how he handles the court’s docket will be front and center as a new justice brings renewed scrutiny to the court’s reputation.
On the eve of the final confirmation vote, Justice Elena Kagan told a Princeton University conference for women that the justices have an obligation to be aware of how precious the court’s legitimacy is to the power of its rulings.
“This is a really divided time,” Kagan said in comments reported by CBS News. “Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court the way they see the rest of the governing structures of the country now.”
Saturday’s vote won’t quell that danger. Media reports on the allegation are bound to continue. Senate Democrats who question the truthfulness of Kavanaugh’s testimony are suing for more public records from his past work in the George W. Bush administration.
And Rep. Jerrold Nadler of New York, who would be Judiciary Committee chairman if Democrats win control of the House in the midterm elections, has said the panel would “have to” thoroughly investigate Kavanaugh on sexual misconduct and perjury allegations.
“We cannot have a justice on the Supreme Court for the next several decades who will be deciding questions of liberty and life and death and all kinds of things for the American people who has been credibly accused of sexual assaults,” Nadler said recently on “This Week” on ABC.
Kavanaugh is expected take his lifetime seat on the high court quickly. He could hear his first oral arguments Tuesday in a pair of criminal law cases. In an irony Kavanaugh himself noted during emotional and defiant testimony before the Senate Judiciary Committee, he contingently hired four women law clerks ready to start right away.
“If confirmed, I’ll be the first justice in the history of the Supreme Court to have a group of all women law clerks,” Kavanaugh told the committee, as he defended himself from an allegation he sexually assaulted Christine Blasey Ford at a high school party decades ago. “That is who I am. That is who I was.”
As much as the allegation deepened political and social divisions over the treatment of victims of sexual misconduct, Kavanaugh’s passionate self defense generated new divisions in the legal community over his fitness to serve on the bench.
He was aggressive with Democratic Sens. Dianne Feinstein of California and Amy Klobuchar of Minnesota and described the hearing as a “calculated and orchestrated political hit” fueled by pent-up anger about Trump and as “revenge on behalf of the Clintons.”
Retired Supreme Court Justice John Paul Stevens, a lifelong Republican, said Kavanaugh’s performance at confirmation hearings should disqualify him. Several of Kavanaugh’s former law clerks withdrew their support for him. And more than 2,400 law professors signed a letter that said 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.”
Senate Majority Leader Mitch McConnell of Kentucky and Republicans cast the vote as a Senate standing up to a political hit job against a qualified nominee besieged by uncorroborated allegations. Minority Leader Charles E. Schumer of New York and Democrats say Kavanaugh was pushed through with serious and lingering questions about his past actions.
Senators from both sides spoke about how Ford’s allegations awoke something in their constituents, who shared stories of how they were sexually assaulted. Protesters on both sides flooded hallways, confronted lawmakers and prompted extra security measures for senators. Both parties claimed the fight had energized their voters with the midterm elections about a month away.Watch: High Tension on the Hill Leading Up to Kavanaugh Vote
The Judiciary Committee filled with partisan rancor after Ford’s allegation, initially detailed in a letter to Feinstein, was leaked to the media against her wishes. Sen. Susan Collins, the Maine Republican whose vote was pivotal, pointed to that leak as the low point in the process.
“My only hope is that your callous act has turned this process into such a dysfunctional circus that it will cause the Senate — and indeed all Americans — to reconsider how we evaluate Supreme Court nominees,” Collins said to whoever leaked the letter.
Within minutes of Collins announcing her support for Kavanaugh, Susan Rice, a national security adviser in the Obama administration, said on Twitter that she would want to challenge Collins in the 2020 election. Within hours, the president of NARAL Pro-Choice America noted that a website to fund an opponent to Collins crashed under the weight of increased traffic.
Sen. Lisa Murkowski of Alaska, the only Republican to oppose Kavanaugh, said she is worried that this will become the new normal and good nominees won’t come forward to go through the process.
Both Collins and Murkowski expressed a hope that Kavanaugh would not be divisive on the court.
“Despite the turbulent, bitter fight surrounding his nomination, my fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions and so that public confidence in our judiciary and our highest court is restored,” Collins said on the floor.
The final vote, conducted as senators sat at their desks as their names were called, reflects a procedural oddity in the Senate.
Murkowski voted “present” instead of “no” so that Sen. Steve Daines, R-Mont., would not have to travel back to Washington for the vote from his home state after his daughter’s wedding. Sen. Joe Manchin III of West Virginia was the only Democrat to vote for Kavanaugh’s confirmation.
The vote is the narrowest confirmation for a Supreme Court justice in modern history.
Watch:‘Boo Yourself,’ 4 Pinocchios and Phones on the Floor: Congressional Hits and Misses