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Kavanaugh confirmed as 114th justice (Updated)

[UPDATE: The Supreme Court announced that Kavanaugh will be sworn in today by Chief Justice John Roberts and retired Justice Anthony Kennedy, for whom Kavanaugh clerked. The ceremony will take place at the court and will allow Kavanaugh to “begin to participate in the work of the Court immediately,” a press release stated. A formal investiture ceremony is expected to follow later.]

Judge Brett Kavanaugh was confirmed this afternoon as the 114th justice of the U.S. Supreme Court. Kavanaugh replaces Justice Anthony Kennedy, who retired in late July after 30 years on the court, spending many of those years as a pivotal vote on hot-button issues like abortion, same-sex marriage and affirmative action. Kavanaugh’s ascension means that the Supreme Court is likely to shift to the right, perhaps significantly, for years if not decades to come.

Kavanaugh had long been mentioned as a potential Supreme Court pick, and when President Donald Trump nominated him on July 9 to succeed Kennedy, his path to the court looked like it would be a smooth one, with support not only from conservative lawyers and legal scholars, but also from Washington insiders of all ideological stripes. In early September, Kavanaugh sailed through four days of confirmation hearings relatively unscathed: Although Democratic senators on the Senate Judiciary Committee expressed skepticism about Kavanaugh’s views on issues ranging from abortion to presidential power and gun rights, it appeared that he would have near-unanimous support from Senate Republicans and could pick up a few votes from red-state Democrats, particularly those facing tough reelection battles.

But Kavanaugh’s journey to the Supreme Court became a much rockier one in mid-September, when a California psychologist named Christine Blasey Ford accused Kavanaugh of sexually assaulting her in the early 1980s, when Blasey Ford and Kavanaugh were students at private schools in the Washington, D.C., suburbs. Blasey Ford contended that Kavanaugh and a friend, Mark Judge, pushed her into an upstairs bedroom at a party; Kavanaugh, Blasey Ford alleged, then jumped on top of her and, she believed, was attempting to rape her.

After Blasey Ford’s story became public, other accusations against Kavanaugh followed, including a claim by Deborah Ramirez, a classmate of Kavanaugh’s at Yale College, that Kavanaugh had exposed himself to her at a party in a dorm room there.

Kavanaugh denied the accusations against him, but the Senate Judiciary Committee held a new hearing on September 27. A nervous but composed Blasey Ford testified first, telling senators that she was “absolutely” certain that it was Kavanaugh who had attacked her in the 1980s. Kavanaugh followed her with testimony that was often emotional or angry, as he forcefully declared his innocence and assailed the accusations against him as the product of an orchestrated effort by the left to torpedo his nomination. Republican senators echoed that idea, while Democratic senators repeatedly called for an FBI investigation into the allegations against Kavanaugh.

On September 28, the Senate Judiciary Committee met to vote on Kavanaugh’s nomination. Several Democrats on the committee, including Senators Corey Booker of New Jersey and Kamala Harris of California, walked out of the meeting to protest the failure to conduct a new FBI investigation. Later in the day, there was even more drama, as Senator Jeff Flake, a Republican from Arizona who is not running for reelection, announced that he would vote to advance Kavanaugh’s nomination to the floor – but on the condition that the FBI would open a one-week investigation into the allegations against Kavanaugh.

Trump ordered the investigation that night, calling for “a supplemental investigation to update Judge Kavanaugh’s file” that would be “limited in scope and completed in less than one week.” Democrats were sharply critical of the investigation and the report that it produced, noting that the FBI had not interviewed either Blasey Ford or Kavanaugh. But Senate Republicans were satisfied with the investigation, and on Friday morning senators voted on cloture – that is, whether to limit debate on the nomination and require a final vote within 30 hours.

The cloture vote went down to the wire, with Senator Lisa Murkowski, a Republican from Alaska, voting against Kavanaugh. But two other key senators, Senators Susan Collins of Maine and Joe Manchin of West Virginia, voted for cloture, with Collins indicating that she would announce her final decision on how to vote by 3 pm on Friday. In a speech on the Senate floor that lasted almost 45 minutes, Collins defended Kavanaugh and his record and declared that she would support him. Manchin announced a short while later that he would also vote for Kavanaugh, essentially guaranteeing that Kavanaugh would be confirmed.

But even if there was little suspense at Saturday’s final vote, there was still plenty of theater, both inside and outside the Capitol. Protesters mobbed the east steps of the Capitol before police could clear them, and dozens of demonstrators were arrested. Other protesters gathered across the street from the Capitol, at the Supreme Court. Inside, on the floor of the Senate, with Vice President Mike Pence presiding, senators sat down at their ceremonial desks for a formal vote, which began at approximately 3:45 pm.

Before the vote, Senate Minority Leader Chuck Schumer, a Democrat from New York, urged Americans who were dissatisfied with the confirmation to go to the polls in November and “vote.” He was followed by Senate Majority Leader Mitch McConnell, who described a vote on a Supreme Court nomination as “one of the most consequential decisions a senator will ever make.” McConnell extolled Kavanaugh as a “superstar, a serious scholar” who is “legendary for his preparation and possesses the qualifications, the temperament and judicial philosophy” to be a brilliant justice. Indeed, McConnell argued, Kavanaugh is “among the best the country has to offer” and “unquestionably deserves confirmation, and the country deserves such a Supreme Court justice.” “A vote to confirm Judge Kavanaugh,” McConnell continued, is a vote about the Senate itself, where “the facts matter” and the “politics of personal destruction do not win the day.”

As Pence attempted to begin the vote, the proceedings were periodically interrupted by protesters in the gallery, who often shouted loudly before they were removed from the room. The names of the senators were called one by one, with each senator standing to cast his or her vote. The final vote was 50 to 48: Although Murkowski had already expressed her opposition to Kavanaugh’s confirmation, she withdrew her “no” vote and was recorded as simply being “present” as a courtesy to Senator Steve Daines, a Republican from Montana, who was out of town to attend his daughter’s wedding. (Even with Murkowski’s “no” vote, Daines’ absence would not have changed the outcome of the vote, but her switch to “present” meant that Kavanaugh was confirmed with the same margin as if Daines had been able to vote “yes,” as he intended.)

Kavanaugh is likely to be sworn in as the court’s newest associate justice soon, and he could be on the bench as soon as Tuesday, when the justices return to hear oral arguments again. Right now the court’s docket is packed with cases that present interesting legal issues but are not the kind of high-profile disputes that we have seen in recent years. That could change quickly, however: During the next few months, the justices could decide whether to take up appeals involving hot-button issues like crosses on public land, partisan gerrymandering, and discrimination against LGBTQ employees. And even if they don’t take up issues like abortion, affirmative action, same-sex marriage and the death penalty – in which Kennedy played a key role – this term, such cases are looming on the horizon and could demonstrate whether, as many expect and Republicans hope, Kavanaugh will move the court to the right.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Kavanaugh confirmed as 114th justice (Updated), SCOTUSblog (Oct. 6, 2018, 4:10 PM),