The Kavanaugh Nomination—Where Things Stands

Last Thursday’s explosive Senate Judiciary Committee hearing is still reverberating across the political landscape. What took place is sure to have significant ramifications for the upcoming midterm elections, for sexual politics in the coming years, and for future Supreme Court nominations hearings. Still unclear, however, is whether it changed the course of what had just weeks ago appeared to be a smooth path to the Supreme Court for Judge Brett Kavanaugh.

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The most important development since Thursday’s hearing was the decision of the Republican-controlled Judiciary Committee to put off the vote on the nomination for a week to give the FBI time to investigate some of the allegations made against Kavanaugh—a potentially significant concession to Kavanaugh’s critics. Senator Jeff Flake demanded the delay and investigation, saying that Kavanaugh would not have his vote without it.

But now that the FBI has completed its investigation and submitted its report, we seem to have returned back to where we were a week ago. Most Senate Republicans believe the FBI report provides further justification for their support of the nominee; most Senate Democrats criticize the investigation as insufficient and argue that the report gives them nothing to make them reconsider their opposition to the nominee. And all eyes are on a handful of Senators—Democrat Joe Manchin of West Virginia and the Republicans Jeff Flake of Arizona, Susan Collins of Maine, and Lisa Murkowski of Alaska—who have yet to say which way they’re planning to vote.

Yesterday gave us yet more turns in this unfolding drama. Judge Kavanaugh took the extraordinary step of publishing an op-ed defending himself. The Wall Street Journal ran Kavanaugh’s op-ed under the headline “I am an Independent, Impartial Judge.” “I was very emotional last Thursday, more so than I have ever been,” Kavanaugh wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.” He concluded by reiterating his commitment to “an independent and impartial judiciary” and promising to “keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.”

Meanwhile, retired Justice John Paul Stevens spoke out against Kavanaugh, saying that the nominee’s partisan statement at his hearing last week should disqualify him from serving on the Supreme Court. Stevens said that if he were to reach the Court, Kavanaugh’s words would require him to recuse himself from a number of cases, and “it’s not healthy to get a new justice that can only do a part-time job.”   

Senate Republican leaders say they plan to hold a vote on the confirmation tomorrow.

This post was written by ISCOTUS Fellow Elisabeth Heiber, Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt and edited by ISCOTUS Editorial Coordinator Matthew Webber, Class of 2019.

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