SCOTUS: Brett Kavanaugh officially confirmed by Senate, sworn in

Kavanaugh sworn in as Supreme Court justice after divided Senate votes for confirmation

The Senate confirmed Brett M. Kavanaugh as the 114th Supreme Court justice on Saturday by one of the narrowest margins in history amid mass protests, ending a vitriolic battle over his nomination and solidifying a conservative majority on the court.

As a throng of angry demonstrators stood on the steps of the Capitol, the Senate finalized on a near party-line vote of 50 to 48 what will certainly be one of President ’s most enduring legacies: two Supreme Court justices in two years in an increasingly polarized nation.

The brutal confirmation fight is likely to have far-reaching implications in next month’s midterm elections. Republicans are confronting an electrified Democratic base led by women infuriated by the treatment of Christine Blasey Ford, who detailed in emotional testimony her allegations that Kavanaugh sexually assaulted her when both were teenagers. Kavanaugh has denied the allegations.

Yet Republicans say the battle to get Kavanaugh confirmed — in the face of Democratic opposition and the “mob” of anti-Kavanaugh demonstrators who flooded the Capitol in recent days — only motivated a fractured GOP electorate on a singularly unifying issue for conservatives: the federal judiciary.

“It’s been a great political gift for us. The tactics have energized our base,” Senate Majority Leader Mitch McConnell (R-Ky.) said in an interview Saturday with The Washington Post. “I want to thank the mob, because they’ve done the one thing we were having trouble doing, which was energizing our base.”

Senate Minority Leader Charles E. Schumer (D-N.Y.) delivered a message “to so many millions who are outraged by what happened here . . . vote.”

Kavanaugh heads to the Supreme Court significantly scarred from the confirmation fight, which had the echoes of the 1991 battle over now-Justice Clarence Thomas, who was accused of sexual harassment by law professor Anita Hill and defended himself in an emotional, high-stakes congressional hearing.

Already, Chief Justice John G. Roberts Jr. has received more than a dozen complaints of judicial misconduct against Kavanaugh but is not referring them for investigation for the time being. And in a joint appearance on Friday night at Princeton University, their shared alma mater, Justices Elena Kagan and Sonia Sotomayor raised concerns about how the bitter partisan battle over Kavanaugh will affect the court’s reputation.

“We have to rise above partisanship in our personal relationships,” said Sotomayor, who was nominated by President Barack Obama in 2009. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”

The tension surrounding Kavanaugh’s nomination continued until the final minutes in the packed Senate chamber, from which several protesters were escorted after disrupting the vote over which Vice President Pence presided. Over shouts of “Shame! Shame! Shame!” and screams of “I do not consent!” each senator stood at his or her desk to vote — a move generally reserved for historic roll calls.

White House counsel Donald McGahn — one of Kavanaugh’s most ardent defenders within the administration — sat in the front row of the public gallery.

Kavanaugh, who received a congratulatory call from Trump, was sworn in at the Supreme Court on Saturday night.

Later in the evening, at a rally in Topeka for Kansas Secretary of State Kris Kobach, who is running for governor, Trump touted the victory as a pivotal win for conservatives.

“I stand before you today on the heels of a tremendous victory for our nation, our people and our beloved Constitution,” Trump said, emphasizing the importance of electing Republicans to Congress in four weeks, given potential future openings on the Supreme Court.

“It could be three, it could even be four, it could be a lot,” he said. “And if you allow the wrong people to get into office, things could change. . . . You don’t hand matches to an arsonist, and you don’t give power to an angry left-wing mob.”


Kavanaugh’s name elicited thunderous applause, with supporters cheering, fist-pumping into the sky and holding up babies in celebration.

The two-vote margin for Kavanaugh was the narrowest for a confirmed Supreme Court justice since 1881, when the Senate confirmed Stanley Matthews, a nominee of President James A. Garfield’s. The vote reflected the divisiveness of the Trump era; all but one Democratic senator — Joe Manchin III (W.Va.) — opposed Kavanaugh.

Democrats were enraged by the nominee’s partisan criticisms in his Senate defense in late September as he cast the opposition to his nomination as retribution for Hillary Clinton’s loss in the 2016 presidential election. They questioned his temperament for the nation’s highest court.

Republicans vigorously defended Kavanaugh’s character and fitness to serve on the bench and blamed Democrats for the tumultuous battle.

“Democratic leaders did everything in their power to make Judge Kavanaugh’s confirmation about anything except his judicial record,” Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said. “When routine process arguments failed, they resorted to outright character assassination.”

Kavanaugh, 53, is a veteran of the George W. Bush White House who has spent a dozen years on the Court of Appeals for the D.C. Circuit. He was a top deputy in the office of independent counsel Kenneth W. Starr when Starr was conducting an inquiry into Bill Clinton.

His nomination was fraught with partisan tensions from the start, as he replaced Justice Anthony M. Kennedy, a Ronald Reagan appointee who nonetheless was a crucial swing vote on landmark decisions involving abortion access and gay rights. His opponents repeatedly warned that Kavanaugh would vote to overturn the 1973 decision in Roe v. Wade, which legalized abortion.

RELATED: The Kavanaugh battle only magnified the nation’s divisions and may leave lasting scars

Much of Kavanaugh’s documentary record from his tenure in the Bush administration remains obscured from public view — particularly documents from his three years as Bush’s staff secretary, one of the senior-most positions in any White House.

But then his nomination collided with the year-old #MeToo movement when Ford detailed her assault allegation to The Washington Post. She said the assault occurred at a gathering in suburban Maryland in the early 1980s. Two other women have since accused Kavanaugh of misconduct.

After a hearing that included testimony from both Ford and Kavanaugh, the confirmation vote was delayed a week to allow the FBI to investigate the allegations. Republicans said the FBI report exonerated Kavanaugh, while Democrats argued that it was too limited in scope to be enlightening.

In a new statement on a GoFundMe page, Ford said she believed and still believes “that it was my civic duty to come forward, but this is by far the hardest thing I’ve ever had to do, much harder even than I thought it would be.”

Ford’s family had reopened the GoFundMe page to cover the costs of security, housing, transportation and other expenses.

In a reminder that Saturday’s vote might not be the last word on the accusations, House Minority Leader Nancy Pelosi (D-Calif.) said she will file a Freedom of Information Act request to make public the FBI report and other related documents.

After the remaining votes fell into place Friday, Democrats, in a show of defiance, spent all night making impassioned floor speeches against the nomination and continued into Saturday morning.

Sen. Patty Murray (D-Wash.) said that by confirming Kavanaugh, the Senate would be sending a deeply troubling message both to the nation’s girls and women — “your experiences don’t matter” — and to its boys and men.

“They can grab women without their consent and brag about it,” Murray said. “They can sexually assault women, laugh about it. And they’re probably going to be fine. They can even grow up to be president of the United States or a justice on the Supreme Court.”

Murray was first elected to the Senate in 1992 after the chamber’s 52-to-48 vote to put Clarence Thomas on the Supreme Court, the last time issues of gender were so starkly highlighted in a confirmation process.

The Democrats’ speeches, many delivered to an almost-empty chamber, were part of their strategy of using nearly the full 30 hours of debate time automatically granted to senators, allowing them to delay the final vote on Kavanaugh until late afternoon.

As they spoke Saturday morning, a mass of predominantly female protesters gathered outside the Supreme Court, chanting “yes means yes, no means no, Kavanaugh has got to go” and “this is what democracy looks like.”

Several women detailed their own experiences with sexual assault. In the afternoon, the crowd numbered in the hundreds, with many wearing T-shirts with the words “November is coming.” They marched across the Capitol plaza to the steps, breaking through police barricades. Dozens were arrested, raising their fists as police escorted them away.

But inside, Republicans were lining up in defense of Kavanaugh.

Sen. Dan Sullivan (R-Alaska), who became friends with Kavanaugh during their shared time in the Bush administration, said he strongly believes those who commit sexual assault should be punished. But he said he also believes in the presumption of innocence.

“We do not want a system of guilty until proven innocent in America,” he said.

Sen. Jeff Merkley (D-Ore.) delivered a blistering two-hour speech, starting at 4 a.m., in which he read testimonies from more than 30 rape and sexual assault survivors who had written to him after Kavanaugh’s nomination.

“I’ve received a lot of letters,” he said to a silent chamber, almost an hour into his speech. “I’m going to read more of them now.”

The sole Republican to oppose Kavanaugh was Sen. Lisa Murkowski (Alaska). But on the floor, she officially withdrew her vote as a courtesy to Sen. Steve Daines (R-Mont.), who missed the vote to participate in his daughter Annie’s wedding. The practice, called a “pair between senators,” ensures that the vote margin would be the same had Daines been present.

But Trump attacked Murkowski in a brief interview with The Post on Saturday, predicting that she “will never recover” politically for her opposition to his second Supreme Court pick. And the bitter politics over Kavanaugh’s confirmation is likely to continue in the coming weeks, months and perhaps years.

“In my view, the biggest losers are the people sitting over there in that court,” said Sen. Doug Jones (D-Ala.). “This is a partisan Supreme Court . . . and they’re the ones that are going to have to try to make it nonpartisan, because we can’t do it at this point.”

Source: washingtonpost.com,  Seung Min Kim and John Wagner, October 6, 2018

President Trump's second nominee to the Supreme Court confirmed

Judge Brett Kavanaugh, President Trump's second nominee to the Supreme Court, was confirmed to the court on Saturday with a Senate vote largely divided along party lines.

The vote occurred shortly before 4 p.m.

The confirmation process has been bitterly partisan, and disputes were exacerbated by allegations of sexual misconduct against Kavanaugh that began surfacing in September. In response to the allegations, the Senate Judiciary Committee heard testimony from Kavanaugh and Christine Blasey Ford, who alleges Kavanaugh sexually assaulted her when they were in high school. Kavanaugh denies the allegation, while she has stood by her testimony.

The committee paused the nomination process for a week so the FBI could investigate. Afterwards, Republicans declared that the FBI had not found any corroborating witnesses, while Democrats complained the FBI didn't look hard or long enough.

The final Senate vote was 50-48 margin in favor of confirming Kavanaugh to the highest court.

Republican Sen. Steve Daines of Montana was not present at the vote because he was attending his daughter's wedding.

Republican Sen. Lisa Murkowski of Alaska, who broke with her party on Friday and voted against advancing Kavanaugh's nomination, voted "present."

Trump announces Kavanaugh will be sworn in Saturday

Mr. Trump tweeted shortly after Kavanaugh was confirmed that the new member of the Supreme Court would be sworn in Saturday evening.

"I applaud and congratulate the U.S. Senate for confirming our GREAT NOMINEE, Judge Brett Kavanaugh, to the United States Supreme Court. Later today, I will sign his Commission of Appointment, and he will be officially sworn in. Very exciting!" Mr. Trump wrote.

Source: cbsnews.com, October 6, 2018

Justice Kagan worries about the 'legitimacy' of a politically divided Supreme Court

Washington (CNN) Supreme Court Justice Elena Kagan expressed concern Friday over the court's lack of a swing vote with Justice Anthony Kennedy's departure from the bench.

Speaking at a Princeton University conference, Kagan warned that a politically divided court could jeopardize its legitimacy.

"In the last, really 30 years, starting with Justice O'Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn't predict in that sort of way. That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair," Kagan said.

She continued: "It's not so clear going forward. That sort of middle position, you know, it's not so clear whether we'll have it."

Kagan's comments come as President Donald Trump looks to fill the vacancy left by Kennedy with Judge Brett Kavanaugh, who is expected to be confirmed by the Senate during a final vote Saturday.

Kavanaugh was accused in September of committing sexual and physical assault more than 30 years ago, and he testified about the alleged incident at a hearing with the Senate Judiciary Committee last week. During the hearing, some of Kavanaugh's testimony appeared blatantly political -- in one instance he called the handling of the accusation "a calculated and orchestrated political hit."

"This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups," Kavanaugh said.

Kagan, speaking alongside fellow Supreme Court Justice Sonya Sotomayor, on Friday emphasized the importance of maintaining the court's legitimacy "especially in this time where the rest of the political environment is so divided."

"Part of the court's legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now. In other words, people thinking of the court as not politically divided in the same way, as not an extension of politics, but instead somehow above the fray," she said.

Source: CNN, October 6, 2018

Confirming Kavanaugh: A Triumph for Conservatives, but a Blow to the Court’s Image

WASHINGTON — For President Trump and for Senate Republicans, confirming Judge Brett M. Kavanaugh as a Supreme Court justice will be a hard-won political victory. But for the conservative legal movement, it is a signal triumph, the culmination of a decades-long project that began in the Reagan era with the heady goal of capturing a solid majority on the nation’s highest court.

Once Judge Kavanaugh is sworn in, the Supreme Court will be more conservative than at any other time in modern history. By some measures, “we might be heading into the most conservative era since at least 1937,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.

The new majority is sure to move the law to the right on countless deeply contested issues, including abortion, affirmative action, voting and gun rights. And the victory will very likely be a lasting one. Judge Kavanaugh, now 53, could serve for decades, and the other conservative justices are young by Supreme Court standards. The court’s senior liberals are not. Justice Ruth Bader Ginsburg is 85, and Justice Stephen G. Breyer is 80.

There will be no swing justice in the mold of Anthony M. Kennedy, Sandra Day O’Connor or Lewis F. Powell Jr., who forged alliances with both liberals and conservatives. Instead, the court will consist of two distinct blocs — five conservatives and four liberals. The court, in other words, will perfectly reflect the deep polarization of the American public and political system.

The fight to put Judge Kavanaugh on the court only widened that division. The confirmation process was a bare-knuckle brawl, and the nomination was muscled through by sheer force of political will. All of this inflicted collateral damage on the court, leaving it injured and diminished.

It also left Chief Justice John G. Roberts Jr. in a tricky spot. He will acquire an additional measure of power, taking the seat at the court’s ideological center that had been held by Justice Kennedy, whose retirement in July created the vacancy filled by Judge Kavanaugh. But Chief Justice Roberts may want to use that power sparingly if he is to rebuild trust in an institution that has been discussed for months in almost purely political terms.

In the long run, though, there is very little doubt that Chief Justice Roberts will lead the court to the right. The only question will be the pace of change. “This is going to be an extremely conservative Supreme Court,” said Tracey George, a law professor and political scientist at Vanderbilt University. “Even if Trump is not re-elected and a Democrat is elected, that is not going to change.”

The justices insist that they discern and apply neutral legal principles without regard to politics. There is ample evidence to the contrary, but the court’s legitimacy rests on public confidence that the court is not, in the end, a political institution.

That confidence has occasionally been tested, notably in Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush. That was a 5-to-4 ruling, and it split along ideological lines. But two Republican appointees were among the dissenters, meaning that the decision may have been political, but was not partisan.

Judge Kavanaugh’s own testimony, laced with fiery attacks on Democrats, also undermined public confidence in the court, said Stephen Gillers, a law professor at New York University.

“It pulled the cloak off the Wizard of Oz,” he said. “The court has a mystique all its own. Kavanaugh’s behavior at the latest confirmation hearing shattered that mystique. It’s going to be hard for the court to come back from that.”

At a hearing devoted to the sexual misconduct allegations against him, a raw and angry Judge Kavanaugh was disrespectful of the senators questioning him. He called the accusations “a calculated and orchestrated political hit” fueled by “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

That language was a striking departure from Judge Kavanaugh’s judicial opinions and his patient and measured responses at his first set of confirmation hearings, before the accusations of sexual misconduct had surfaced. It was, instead, of a piece with his work on the Ken Starr-led independent counsel investigation of Bill and Hillary Clinton and, to a lesser extent, his time as an aide in the Bush White House, both partisan roles.

The accusations themselves, strongly denied by Judge Kavanaugh but credited by much of the public, were a blow to the moral authority of the Supreme Court, particularly given that Justice Clarence Thomas faced claims of sexual harassment at his own confirmation hearings. It cannot help the court’s reputation that a third of its male justices have been questioned about sexual misconduct.

The court faces other challenges, too, as it is in danger of being perceived as not only political but also partisan. Judge Kavanaugh will be the fifth member of a solid conservative majority, all appointed by Republican presidents. The members of the court’s four-member liberal wing were all appointed by Democrats.

That partisan divide is a fairly new phenomenon, said Lawrence Baum, a political scientist at Ohio State and an author of “The Company They Keep: How Partisan Divisions Came to the Supreme Court,” which will be published next year.

“The fact that ideological lines on the court have coincided with party lines since 2010 has given the court a more partisan image,” Professor Baum said.

Justice Kennedy was a moderate conservative who occasionally joined the court’s liberal wing in major cases on divisive social issues. There is little reason to think that a Justice Kavanaugh would forge similar coalitions.

“Kavanaugh will clearly move the court even further in the politically conservative direction,” said Geoffrey R. Stone, a law professor at the University of Chicago. “The most obvious issues that will be affected by his appointment are on issues like abortion, affirmative action and the rights of gays, lesbians and transgender persons.”

Professor Stone was one of more than 2,000 law professors who signed a letter opposing Judge Kavanaugh’s confirmation, saying he “did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”

There is little Chief Justice Roberts can do to counter the partisan impressions left by the confirmation process, Professor Gillers said. “The best thing for the court as an institution to do is to continue on as if it never happened,” he said.

Chief Justice Roberts may take one step to minimize controversy. When he is in the majority, which he is around 90 percent of the time, he decides which justice will write the majority opinion. It will be surprising if he chooses to assign, say, a case concerning sexual harassment to Justice Kavanaugh.

The confirmation hearings may affect the relationship between the chief justice and his new colleague in another way, said Neal Devins, a law professor at William & Mary and the other author of “The Company They Keep.”

“Before the harassment charges, it is quite possible to imagine Kavanaugh being an intellectual leader who might well shape doctrine the way Scalia shaped doctrine,” he said, referring to Justice Antonin Scalia, who died in 2016. But in the aftermath of the accusations, Professor Devins said, “Chief Justice Roberts might be more resistant to embracing those positions for fears that the court will be seen as highly partisan and politicized.”

After earlier divisive confirmations battles — when Judge Robert H. Bork was rejected by the Senate in 1987, leading to the appointment of Justice Kennedy, and when Justice Thomas was narrowly confirmed in 1991 — the court’s reputation took a hit.

“There was a lingering effect in terms of attitudes about the court,” Professor George said. “But it didn’t linger long.”

There is a wild card in the digital era that may produce a more lasting effect this time, she added: video clips can live forever online. “People are sharing images of him from the hearing where he looks belligerent and certainly does not look judicial,” Professor George said, referring to Judge Kavanaugh. That’s not to mention a devastating portrayal of him on “Saturday Night Live” that has had 20 million views on YouTube.

Some commentators have argued that Justice Kavanaugh would have to recuse himself from many kinds of cases, including ones involving Mr. Trump, Democrats and liberal advocacy groups. That view is not widely shared among experts in legal ethics.

“I don’t think the recusal risks are very high,” Professor Gillers said. “He made broad accusations against large, undifferentiated groups of people. I don’t think any member of those groups would have grounds for seeking to disqualify him. The Clintons would, of course, but very few others.”

Justices decide for themselves whether to step aside from cases. Justice Ruth Bader Ginsburg has sat on cases concerning Mr. Trump and his administration after publicly criticizing him during the presidential campaign.

In 2011, as the Supreme Court was preparing to hear a challenge to President Barack Obama’s health care law, some critics said Justice Thomas should disqualify himself because his wife, Virginia, had worked with groups opposed to the law. Others said Justice Elena Kagan should not hear the case because she may have been involved in aspects of it when she was United States solicitor general. Both justices sat on the case.

In his year-end report in 2011, Chief Justice Roberts said justices could be trusted to decide for themselves whether they should recuse — because they have been vetted by the Senate.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Source: The New York Times, Adam Liptak, October 6, 2018

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