The Kavanaugh Nomination: A Pivotal Moment in Our Nation's Political Life

by Shawn P. Healy, PhD, Democracy Program Director

A month ago, my colleague Mary Ellen Daneels previewed the U.S. Supreme Court confirmation process for Judge Brett Kavanaugh, sharing a plethora of classroom resources ripe for immediate use. Little did we know of the dramatics that would follow.

Kavanaugh was a fairly conventional nominee for a Republican President that vowed to select individuals vetted by the conservative Federalist Society. He did have a significant paper trail given his previous service as a lawyer in the Bush Administration, but twelve years on the federal bench and an Ivy League education placed him on par with his presumptive peers on both sides of the ideological spectrum.

However, history suggests that some of the most contentious nominations center on the ideological positioning of the Justice being replaced in relation to the nominee. In this case, Justice Anthony Kennedy, the swing vote on an otherwise evenly divided Court, decided to retire in June, opening the door for his former law clerk, a conservative more in the mold of the late Justice Antonin Scalia. Kavanaugh’s ascension to the Court could place precedents that progressives hold near and dear to their heart in jeopardy, including those related to affirmative action, same-sex marriage, and abortion.

The Senate is empowered to confirm judicial nominees, and we are in the midst of the vetting process. Historically, the bar was whether a nominee was qualified to serve a lifetime appointment in the Court, but as symptomatic of our increasingly polarized politics, ideology entered the fray with Reagan’s failed nomination of Judge Robert Bork in 1987.

Recent allegations of sexual abuse against Judge Kavanaugh bring us back to 1991 when President George H.W. Bush nominated conservative Judge Clarence Thomas to replace civil rights icon Thurgood Marshall. An all-male Judiciary Committee arguably provided cover for Thomas against sexual harassment allegations from his former colleague Anita Hill.

Thomas survived a narrow confirmation vote, but 1992 became known as the “Year of the Woman” when many female candidates were motivated to enter the arena of electoral politics, and a number of candidates found success, including ranking minority member of the Judiciary Committee Dianne Feinstein (D-CA) and former Illinois Senator Carol Moseley Braun.

Four women now sit on the Senate Judiciary Committee, but each of them are Democrats. All eleven Republican committee members are Republican, and two of them (Senators Grassley and Hatch) were there in 1991.

Women are still vastly underrepresented in Congress, and only four have ever served on the Supreme Court. More female candidates than ever before are pursuing elected office at the state and national levels this November, so a second coming of the “Year of the Woman” may not be far behind.

The midterm elections are an important backdrop to the Kavanaugh confirmation process, as Democrats have an outside chance of taking control of the Senate, and with it vetting future presidential nominees. Should Kavanaugh not be confirmed and the Senate falls to Democrats, the clock is running out on Republicans to appoint a like-minded conservative.

In this scenario, it’s not difficult to imagine the Kennedy vacancy remaining open through the 2020 Election. Indeed Republicans did the same to President Obama during his final year in office.

Turning back to Kavanaugh, the FBI is currently in the throes of an investigation called for by Senator Jeff Flake (R-AZ), but also endorsed by two of his colleagues, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK). Assuming a strict party line vote outside of these three Senators, they hold the balance of power in a body controlled 51-49 by Republicans with Vice President Pence poised to break any tie. Recall that the filibuster was neutralized for Supreme Court nominees last year.

As we await the results of this investigation, the background provided above is critical to advance students’ understanding of how we arrived at this juncture. It goes without saying that we should also underline that what happens in high school and college follows us throughout our lives, impacting our careers and families.