The controversial nomination of Brett Kavanaugh to the Supreme Court

On Saturday the 6th of October, Brett Kavanaugh was elected by the U.S. Senate as a Supreme Court Justice, with 50 votes in favour and 48 against. He swore the same night in his new functions. This is concluding weeks-long hearings that were followed by millions of Americans with great concerns. But why did it make such noise and took so long? Some accusations of sexual harassment were deposited against him, which led to hearings before the Senate as well as an FBI investigation.

The appointment of Justices to the Supreme court involves a specific process set forth by the U.S Constitution: the President has the power to propose the new judge when a former Supreme court Justice dies or retires. This nominee has to be approved by a hearing and a vote by the members of the Senate. The process is often soft and not experimenting such a hard media coverage like that of Brett Kavanaugh.

Who is Brett Kavanaugh, the 9th Justice of the American Supreme Court?

Brett Kavanaugh is affiliated to the Republican ideas and party, for having supported George W. Bush during the 1999 electoral campaign. From 2000 onwards, he was indeed the White House staff Secretary under George W. Bush, who named him in 2003 for the US Court of Appeals for the District of Columbia. However, his hearings were already contentious at the time and stalled for three years over charges of partisanship… He was only confirmed as judge of the Court of Appeals in 2006.

Thus, the new public affair that tarnished his nomination to the Supreme Court came as an even more worrying case. The scandal of potential sexual harassment has been disclosed by Christine Blasey Ford’s testimony before the Senate, who has apparently been harassed at the age of 15 by Brett Kavanaugh, when both of them were high-schoolers. She was on the front page of the Time magazine, with an article entitled “How Christine Blasey Ford’s testimony changed America”. This strong exposure, in a very popular and with a wide lectorate magazine, underlines how much such sexual accusations are really taken into account nowadays on the political scale – and even more since the Weinstein case a year ago.The public image of politicians counts more and more nowadays when they want to access strategic positions. It did impact the Senate approval vote, which was largely delayed. It has given even more political credit to such questions.

Several political figures have spoken out in favour of Christine Blasey Ford or have withdrawn their support for Brett Kavanaugh. For instance, the Chairman Senator Chuck Grassley, also affiliated to the Republican party, officially congratulated CBF for her bravery. Even President Donald Trump called her “a credible witness” on Twitter. Moreover, three Republican governors called for a delay in the election of the new Supreme Justice after the testimony was revealed, in order to check veracity and value. Also, the prominent Catholic magazine America publically withdrew its support for the nominee. It is even more striking that personalities and media from Kavanaugh’s own party, the Republicans, were then rejecting his nomination.

A poll was broadcast on the 3rd of October, according to which 45% of the respondents believed the testimony of CBF, whereas only 33% believed in Kavanaugh’s honesty. It highlights how much the American people is actually concerned with such an election. Although, despite a public support for CBF, Brett Kavanaugh has finally been elected for a chair as Supreme Justice. He replaced Anthony Kennedy, the retired judge.  

On Tuesday the 9th of October, Donald Trump made an “official apology” to Kavanaugh on Twitter, apologizing for his suffering “in the name of the nation”. It did not change the fact that Kavanaugh was the least well elected judge since 1881, in terms of votings by the Senators.

How important is this election for Donald Trump ?

First of all, Brett Kavanaugh is close to the Republican party, so it is indeed important for Trump’s republican administration to count on an additional “Republican-affiliated” Justice. In the Supreme Court, Justices are not classified according to their political affiliation but according to their place on the ideological chessboard : Conservative or Progressist. One would easily understand that Conservative judges are mostly Republicans, and Progressivist judges are often Democrats – although this is not always the case. Nowadays, there are five Conservative Justices (among whom the Chief Justice of the Court) and four Progressivist judges. Entitling Kavanaugh as a new Conservative Justices gives a potential power to Donald Trump’s republican policies. He had indeed named two Republicans since his election in 2016.

Moreover, one month before the midterms elections, this nomination is a substantial signal for Donald Trump. It reasserts even more his political power – let’s not forget this judiciary election is very politicized. In an article published on the 20th of September, the Time magazine even states “Brett Kavanaugh’s Supreme Court Confirmation Is Now the Ultimate Test of Political Power in 2018”. The Senate itself is already led and won by the Republicans : there are 51 Republican Senators for only 47 Democrats (and 2 independents affiliated to them). This mediatic battle will, with no doubt, influence the midterms campaign and results, but not necessarily with a positive end for Trump. The women votes could especially be biased at Trump’s expense by the question of sexual harassment which runs for a long time since the Weinstein case; and it could further encourage Democrats to go to the polls in order to put a stop to the Republicans’ power among the federal institutions.

Aliénor Chéreau

Bibliographie :

“Le juge Kavnaugh confirmé à la Cour Suprême”, Courrier International, d’après le Washington Post, publié le 6 octobre 2018. En ligne, URL : https://www.courrierinternational.com/article/etats-unis-le-juge-kavanaugh-confirme-la-cour-supreme

“Après la confirmation de Kavanaugh, les Républicains jubilent”, Le Monde, publié le 7 octobre 2018. En ligne, URL : https://www.lemonde.fr/ameriques/article/2018/10/07/la-nomination-de-brett-kavanaugh-approuvee-a-la-cour-supreme-les-republicains-crient-victoire_5365792_3222.html

Haley Sweetland Edwards, “How Christine Blasey Ford’s testimony changed America”, Time, publié le 4 octobre 2019. En ligne, URL : http://time.com/5415027/christine-blasey-ford-testimony/

Molly Ball, “Brett Kavanaugh’s Supreme Court Confirmation Is Now the Ultimate Test of Political Power in 2018”, Time, publié le 20 septembre 2018. En ligne, URL : http://time.com/5401624/brett-kavanaugh-confirmation/