Explained: Five norms challenged by Brett Kavanaugh’s confirmation

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Joe Wolf, Web & Mobile Manager

The U.S. Senate voted Saturday 50-48 to confirm Brett Kavanaugh for a seat on the Supreme Court. The decision to elevate Kavanaugh, President Donald Trump’s second confirmed justice at this point in his presidency, was the narrowest since President James Garfield’s pick Stanley Matthews was confirmed 24-23 in 1881.

Of the 100 senators tasked by the Constitution to provide ‘advice and consent’ on presidential nominations to the federal judiciary, all but three voted along strict party lines. Democratic Sen. Joe Manchin of West Virginia broke with his party to vote in favor, while Republican Sen. Lisa Murkowski of Alaska, who announced Friday morning her intentions to vote ‘no,’ voted ‘present.’ Murkowski opted to pair her vote with Sen. Steve Daines’ (R-Mont.) expected ‘yes’ vote, in essence canceling out their opposing votes, allowing Daines to attend his daughter’s wedding instead of the session without worrying about the final verdict coming down to his deciding vote.

The president announced his pleasure with the result on Twitter.

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The partisan battle was also informed by multiple allegations of sexual assault against the recently sworn in justice, including from Palo Alto University Prof. Christine Blasey Ford, who accused Kavanaugh of attempting to sexually assault her while the two were in high school. Kavanaugh denied all allegations, which prompted an FBI investigation earlier this week.

Beyond the close vote, the impact on the court’s decisions going forward and whatever your opinion of the controversial nominee, Kavanaugh’s confirmation fight challenged a number of long-standing norms.

Here are some of the highlights:

Interviewer Rachel Mitchell: As soon as Ford’s accusation became public, and the Senate Judiciary Committee agreed to allow Ford to present her testimony, many commentators drew parallels to the hearings held for now-Justice Clarence Thomas and his accuser Prof. Anita Hill. Faced with the similar optics of an all-male panel interviewing a female accuser, the Senate Judiciary Committee brought in Arizona prosecutor Rachel Mitchell as Investigative Counsel. Mitchell, a woman, questioned both Ford and Kavanaugh, though individual senators also asked their own questions.

Court of public opinion: Unlike the America of 1991, where people overwhelmingly believed Thomas over Hill, an NPR/PBS/Marist College poll released Wednesday showed more Americans believed Ford’s allegations than Kavanaugh’s defense. This shift in the benefit of the doubt connected the Kavanaugh confirmation to the larger #MeToo movement, as the nation hears from sexual assault survivors coming forward with their experiences.

Kavanaugh’s partisan rhetoric: During his testimony, Kavanaugh criticized Democratic lawmakers for what he deemed “a calculated and orchestrated political hit.” He went on to describe their behavior as “revenge on behalf of the Clintons.” Many judicial nominees have been unwilling to wade into openly political questions, especially during their confirmation hearings, as doing so could jeopardize their ability to appear impartial in legal decision-making.

Justice Stevens’ condemnation: Former Justice John Paul Stevens spoke out against Kavanaugh’s confirmation Thursday, in a rare moment of political speech from a retired justice. The former justice said Kavanaugh’s partisan remarks during the confirmation hearings showed potential bias that could impact the credibility of future court decisions, according to The New York Times. Stevens, 98, served on the Court from 1975 to 2010 after being nominated by President Gerald Ford and being confirmed unanimously by the Senate.

Kavanaugh’s op-ed: In another uncommon move, Kavanaugh himself entered the political media fray by authoring an essay defending his behavior during the hearings published in the Opinion section of The Wall Street Journal. The justice discussed his honor at being elevated from the D.C. Circuit Court to the Supreme Court, and described the role of a judge as “an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy.”