Dean Saridakis ’19
I’d like to start by congratulating newly sworn-in Associate Justice Brett Kavanaugh. Regardless of political opinion, the Supreme Court is the most important court on our planet, and anyone intelligent and accomplished enough to be considered, let alone confirmed, should be applauded. However, let’s examine the process of how Associate Justice Kavanaugh was confirmed. What may have not been evident at the onset of this process was that those who might not be viewed as being the vocal, powerful players served the crucial role in tipping the Senate vote in Judge Kavanaugh’s favor.
Kavanaugh’s nomination can be traced back to the outcome of the 2016 presidential election. Donald Trump won the electoral college 304-227 against Democratic challenger, Hillary Clinton. For many, this election was not about the Border Wall, social justice issues, or even the economy; it was about composition of the Supreme Court. Associate Justice Antonin Scalia, a Reagan conservative, passed away on February 13th, 2016, leaving eight Justices on the Bench: 4 Republican, 4 Democrat. In anticipation of the upcoming election, President Obama attempted to fill Scalia’s seat shortly after his death. With a Republican majority in the Senate, he could not feasibly nominate a staunch liberal judge to the seat. With this in mind, he nominated moderately Democratic Judge Merrick Garland. However, Republicans believed that no new Justice should be confirmed until after the upcoming election, so they held off on the Garland nomination. After Trump’s inauguration, he wasted no time filling Scalia’s seat with now-Associate Justice Neil Gorsuch, in a 54-45 confirmation vote. Many Republicans breathed a sigh of relief with Gorsuch’s confirmation, recognizing that if had Clinton won, the balance of the Bench would have surely shifted to the left.
Justice Kennedy, the last of three Justices appointed under Reagan, announced his retirement on June 27th, 2018, once again leaving a Republican seat open. This opening gave President Trump his second Supreme Court nomination within his first two years of his term (similarly, Obama was met with the same opportunity, with Associate Justices Sotomayor and Kagan). On July 9th, President Trump announced he would nominate Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit to be Kennedy’s successor.
Immediately, Kavanaugh’s nomination was met with hostility from those opposing a conservative nominee to the Supreme Court. Senate Minority Leader Chuck Schumer (D-NY) stated the day of the nomination that “I will oppose Judge Kavanaugh’s nomination with everything I have.” Pushing back, Senate Majority Leader Mitch McConnell (R-KY) believed that Kavanaugh was “extremely well-qualified.”
Before I continue, I have to say that I will not be going into detail regarding the hearings for Kavanaugh about his legal philosophy and the allegations of sexual assault against him. That is an article for another day, and you would’ve had to actively avoid the news to not have a clue about what those hearings entailed. I will fast forward to the end of the sexual assault hearing before the Senate Judiciary Committee.
This hearing occurred on Thursday, September 27th, 2018. With the Republicans trying to speed up the seemingly obstructed path to confirmation, they held a procedural vote in the Senate Judiciary Committee to determine if they would endorse Kavanaugh as a whole Committee. The outcome of the vote was predictably split along party lines, with the Republicans narrowly winning 11-10. But before Republicans could become too giddy, key moderate Republican and “Never-Trumper” Senator Jeff Flake (R-AZ) threw a wrench into the system when he called for a week-long FBI investigation into these allegations in exchange for a “yes” vote, assuming nothing damning was uncovered. After a relatively quiet week regarding the investigation, the FBI returned with their report to the Senate Judiciary Committee, without any evidence corroborating the claims against Kavanaugh. Staying true to his word, Senator Flake pledged to vote “yes” for Judge Kavanaugh. Flake, being the first of the five moderates to announce their vote, gave the Republicans an early 1-0 lead.
With one moderate voting to confirm Kavanaugh, all eyes were on four moderate Senators, who had not yet voiced which way they would vote. The two parties fought viciously to convince these senators to vote for their side. These senators were Sen. Susan Collins (R-ME), Sen. Heidi Heitkamp (D-ND), Sen. Joe Manchin (D-WV), and Sen. Lisa Murkowski (R-AK).
The first of the remaining senators to make their decision was Senator Heitkamp, a Democrat in a state who, in 2016, voted for Trump 36 points over Clinton. With the polls out of her favor, she was pressured into voting “yes” for Kavanaugh. However, in a surprising turn of events, she announced her vote would be a “no” because of Kavanaugh’s “body language and demeanor.” The score of the moderates after this decision was 1-1.
The next senator to make their decision was Senator Collins, another Republican senator to call for the supplemental FBI investigation. She announced her “yes” vote after delivering a 40-minute speech on the Senate Floor. A part of her decision to vote “yes” is that “I began my evaluation of Judge Kavanaugh’s nomination by reviewing his 12-year record on the DC Circuit Court of Appeals, including his more than 300 opinions and his many speeches and law review articles”, she said. Mere minutes after Collins’ decision, Sen. Manchin stated that he would vote “yes” as well, saying “I voted to confirm Judge Kavanaugh’s nomination to serve on the Supreme Court because I believe he will rule in a manner that is consistent with our Constitution.” With these two senators with the Republicans, they have the moderate lead 3-1.
Senator Murkowski was the final senator to make her decision. In a late decision, she stated “I believe that Brett Kavanaugh is a good man. I believe he is a good man. It just may be that in my view he’s not the right man for the court at this time.” This garnered backlash from members of the GOP, especially the president, while inviting praise from the Democrats and most news sources. However, ultimately, she did not formally vote “no”. Republican Senator Steve Daines (R-MT) could not attend the vote due to his daughter’s wedding that day, so Murkowski, out of respect for Daines, voted “present”, which isn’t a yes or a no. The moderate score ended up to be 3-2 in favor of the Republicans.
After a dramatic several weeks, on Saturday, October 6th, 2018, Judge Brett Kavanaugh was confirmed in a 50-48 Senate vote, the most narrow outcome of a Supreme Court Justice in US History. Although this was a very partisan process, it was the moderates who essentially decided the result of the confirmation. Without acting hostile or seeking constant airtime to voice their opinions on live television, the moderates set certain guidelines to be followed. The moderates did not act on preconceived biases based on party affiliation, but instead, they chose a rational path and considered the evidence and information presented to them. With the fate of the confirmation in the hands of the moderates, both sides had to follow their lead. If one side was defiant to the will of the moderates, they would have saved their pride, but they would have lost. In this case, the Republicans had to patiently entertain the request of their moderate counterparts, and it paid off in the end.
In a world becoming more polarized, conversations can quickly become highly charged and contentious, with a complete absence of civility and rational thought. What people don’t always recognize is that sometimes the most power lies not in the hands of those who are the leaders in the House of Representatives or the Senate, but in the hands of those who more quietly, thoughtfully, and moderately cast the deciding votes to make or break the confirmation of a highly qualified, conservative Justice on the Supreme Court for 30 years. As a high school student looking ahead, it is my hope that an increasing number of decisions are influenced by the rational thought of the middle.