Supreme Court Nomination Snagged by Allegations

Steve Propes

With the nomination of Judge Brett Kavanaugh as a United States Supreme Court justice undergoing unexpected and surprising resistance, CSULB political science professors opined about the process, history and consequences of such nominations and appointments.

To those who support Kavanaugh, the nomination comes down to the philosophy of the candidate and how he got that way. The Federalist Society, according to Political Science Professor Jason Whitehead, is a private organization of lawyers and judges formed to support a conservative agenda.

“There’s nothing like that on the left, more of what we’re seeing is a tight network,” said Assistant Political Science Professor Jared Perkins. “The Federalist Society had a direct hand on determining  who is nominated. A high ranking member of the Federalist Society, Leonard Leo’s job was to vet the nominee. Leo prepared the list of nominees. Trump picked from that limited list.

“One of the major tenets of the society is the concept of originalism,” most notably advocated by the late Justice Antonin Scalia. “It has to do with the Bill of Rights and the Federalist Society’s belief it should be interpreted in its original context.”

Whitehead said Federalist Society “conservatives have had success in turning the court around, to get to the place where you have five movement conservatives on the court. With the Federalist Society, judges like Kavanaugh have been trained over the years to be on the court. That long term of the effort is beginning to pay off.”

During his testimony before the Senate Judiciary Committee, Whitehead noted Kavanaugh was very strategic in that he was able to deftly navigate the questioning by not providing substance. The purpose of the hearings was to gather information, yet “he did not answer questions about issues people are thinking about” by refusing to talk about matters that might come before the court.

This tactic might well be called the Bork rule; that is, avoiding mistakes made by failed Supreme Court nominee Robert Bork when he testified in 1987. When asked about the right to privacy, he answered he didn’t think there was good logic supporting those cases. He didn’t say he’d overturn, but said it was based on poor logic. Committee Chairman Senator Joe Biden answered the same logic supported Brown vs. Board of Education,” which desegregated public schools in 1954. Bork said he didn’t necessarily support that decision. “Grilling him wasn’t the practice at the time. I do respect conservatives who are clear about their principals and are consistent,” said Whitehead.

“It’s one thing to say decisions are conservative or liberal, but a judge has philosophy he or she believes in and they have a personal philosophy, moderated through working through the record of the case. The idea to put your ideology out of your mind, looking at legal statutes, is a rational way of looking through that.”

Whitehead noted the almost week long Kavanaugh hearings became increasingly political. “With protestors at the hearing, they were especially contentious. Even though it’s common to see protestors outside the hearings and even when the justice takes office, I don’t remember the time protestors interrupted the hearings.

“There’s a reasonable explanation for these protests,” said Whitehead. “It has to do with the history of how the Republicans didn’t allow the nomination of Merrick Garland” to be heard. “There’s a lot of bad blood, combined with the fact this could change the direction of the court.

“There was a lot of debate among Democrats whether it was good idea, whether it would have been a better idea to have restrained protest, some proposed a walkout.”

“I really don’t think this is about Judge Kavanaugh,” said Perkins. “It’s a larger conversation about the standards we hold politicians to in a sexual context.” Of the three candidates Trump chose from, “Kavanaugh is the least conservative, the least likely to overturn Roe vs. Wade.”

Asked if Kavanaugh is confirmed with accusations still unresolved, Perkins said, “If professor Ford is not given a fair hearing and her allegations are not fully and transparently investigated, then Judge Kavanaugh is likely to significantly contribute to the legitimacy problem on the U.S. Supreme Court. By rushing the confirmation process when public support for Judge Kavanaugh is so low, it may seriously lower the public prestige and legitimacy of the court – especially on some issues such as abortion and sexual assault.”

Whitehead opined, “The only formal impact the unresolved accusations could have on Kavanaugh would be through the impeachment process. If an investigation later revealed clear proof that he did it and that he lied to the Senate under oath, and if the House and Senate switch to Democratic hands, they could vote to impeach and remove him from office. But that is highly unlikely – only one Supreme Court justice has ever been impeached and he was not removed from office. And if the Democrats get a majority and want to start impeachment proceedings, it’s not going to be against Kavanaugh.”


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