On October 6, 2018, now-Associate Supreme Court Justice Brett M. Kavanaugh was formally confirmed by the U.S. Senate — in a rare Saturday session — with a slender vote of 50 yeas and 48 nays in the 100-member body. Both of Tennessee’s Senators, Republicans Lamar Alexander and Bob Corker, cast their votes in favor of Kavanaugh joining the highest court in the land.
The last time that someone gained membership onto the High Court by such a close margin was on May 12, 1881, when Thomas Stanley Matthews (nominated by President James Garfield) squeaked by with 24 yeas and 23 nays in the Senate. Matthews went on to distinguish himself on the Court as a foe of racial discrimination when he wrote the Opinion in the 1886 case of Yick Wo v. Hopkins, striking down the City of San Francisco’s then-policies of restricting the ability of Chinese immigrants in that city — and placing extraneous procedural obstacles in their path — to establish businesses there, thus infringing upon the federal Constitution’s 14th Amendment.
A short time after this past Saturday’s 50-48 vote, Chief Justice John Roberts administered the official oath to Kavanaugh as the 114th Justice of the Supreme Court, thereby bringing the panel up to its full-strength of nine members, just five short days after the commencement of the Court’s 2018 October Term.
With the sole exception of Senator Lisa Murkowski of Alaska, all present Republicans voted to confirm Kavanaugh. While making no secret of her opposition to Kavanaugh, as a courtesy to fellow Republican Steve Daines, Murkowski instead voted “present” (rather than “nay”) so as to adjust the mathematics of the vote so that Daines could be absent from the Capitol and afforded the opportunity to attend the previously-planned Saturday wedding of his daughter back home in Montana. Given that shift in the arithmetic, there was no need for Vice-President Mike Pence to intercede with a vote of his own. A bare 50 yeas was numerically sufficient for Kavanaugh’s confirmation.
Senator Joe Manchin of West Virginia was the lone Democrat to break party ranks and support the confirmation of the 53-year-old Kavanaugh.
All of this, of course, is courtesy of your United States Constitution.
In its Article I, America’s highest legal document establishes that the:
“…Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
In this particular instance, the vote in the Senate was not tied and the Constitution’s further Article I requirement that:
“…a Majority of each [house] shall constitute a Quorum to do Business…” was more than met.
In its Article III, the Constitution establishes a system of Federal Courts by declaring in pertinent part:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
While the Constitution itself does not specify the number of Justices to serve on the Supreme Court at any one particular time, Congress — by federal statute — took matters into its own hands, nearly a century and a half ago, and approved the Judiciary Act of 1869, which remains current law, and reads in relevant portion:
“…the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum….”
In its Article II, the Constitution empowers the President to:
“…nominate, and by and with the Advice and Consent of the Senate…appoint…Judges of the supreme Court….”
It was the resignation of Associate Justice Anthony Kennedy, effective July 31, 2018, which occasioned the vacancy on the High Court that President Trump sought to fill with his nomination of Brett Kavanaugh to replace Kennedy.
But what do the above-quoted words “Advice and Consent” really mean? In the case of Kavanaugh — even by his own testimony before the U.S. Senate’s Committee on the Judiciary — it seemed more “search and destroy” than “Advice and Consent”. In addition to unsubstantiated criminal allegations hurled at Kavanaugh, his nomination was sadly accompanied by badly-behaved protestors who engaged in violence, destruction of other people’s property, and intimidation tactics more akin to a riot than to merely expressing free-speech opposing views to the selection of someone for a judicial post.
While Kavanaugh’s detractors were passionate about the various criminal allegations leveled against him, not so much as a scintilla of evidence, or corroboration of any witness — other than his main accuser — was presented to Senators. Indeed, none of the four names which that accuser offered as “witnesses” could substantiate her claims, and one of them was even widely quoted in the media as going so far as to describe her charges as “absolutely nuts”.
Justice Kavanaugh was, as an old saying goes, “put through the wringer” and by extension so, too, was our nation. The controversies which swirled around Robert Bork’s ultimately unsuccessful nomination to the High Court in 1987, and Justice Clarence Thomas’ nomination in 1991 — as disquieting as they were to those of us who lived through them — do not hold a candle to what was dished out to Kavanaugh over the past few weeks.
But the ruggedness of your Constitution, with its protocols and vote threshold requirements, came shining through when the dust settled.
The Constitution’s Sixth Amendment makes a number of guarantees to someone accused of a crime, including a “…right to a speedy and public trial, by an impartial jury…” and “…to be confronted with the witnesses against him….”
While the assertion that the U.S. Senate, and its committees, are not criminal courts of law is indeed an accurate claim, nevertheless, as Senator Susan Collins (R-Maine) noted, in her remarks before the full Senate one day prior to Saturday’s 50-48, vote:
The confirmation process now involves evaluating whether or not Judge Kavanaugh committed sexual assault — and lied about it to the Judiciary Committee. Some argue that because this is a lifetime appointment to our highest court, the public interest requires that doubts be resolved against the nominee. Others see the public interest as embodied in our long-established tradition of affording to those accused of misconduct a presumption of innocence. In cases in which the facts are unclear, they would argue that the question should be resolved in favor of the nominee. Mr. President, I understand both viewpoints. This debate is complicated further by the fact that the Senate confirmation process is not a trial. But certain fundamental legal principles about due process, the presumption of innocence, and fairness, do bear on my thinking — and I cannot abandon them. In evaluating any given claim of misconduct, we will be ill-served in the long run if we abandon the presumption of innocence and fairness — tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy. The presumption of innocence is relevant to the [Senate’s] advice and consent function when an accusation departs from a nominee’s otherwise exemplary record. I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward. “
Although not required to adhere to the principles of due process and presumption-of-innocence, individual members of the Senate retain discretion to uphold or to disregard those ideals. And that is what we saw in action on Saturday — upheld, albeit by a worrisome margin of 50 to 48.
Americans should consider the result had the vote gone the other way. Under that scenario, the political lesson would have been learned that if activists who oppose someone — or some concept — manage to throw enough mud, fabricate a sufficient number of distractions, and “scorch the Earth” adequately, they will prevail. This author is thankful that such sleazy tactics did not carry the day and, with hope, never will in the future.
In the final analysis, your Constitution won while “mob rule” and unbridled character-assassination lost — even if just by a hair.
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With his decade of work (1982-1992) to gain the 27th Amendment’s incorporation into the U.S. Constitution, Gregory Watson of Texas is an internationally-recognized authority on the process by which the federal Constitution is amended.