For conservatives, Senate vote is a big win
WASHINGTON — The Senate narrowly confirmed embattled nominee Judge Brett M. Kavanaugh to the Supreme Court Saturday, cementing the conservative majority on the nation’s highest court after a bitter confirmation battle that left the Senate bruised and the nation divided.
The disunion was evident in the 50-48 vote that put Kavanaugh on the court — a historically narrow margin — and in the screams of the protesters yelling, “Shame!” inside the chamber as the roll call was tallied. Kavanaugh was whisked almost immediately via motorcade to the Supreme Court and sworn in by Chief Justice John Roberts and retired Justice Anthony Kennedy, the court’s swing vote whose departure created the vacancy.
The whirl of events brought an end to a wrenching confirmation process in which allegations of sexual assault brought new urgency to the country’s ongoing #MeToo reckoning, but were ultimately not enough to derail a nomination that represented the culmination of a decades-long effort to tilt the judiciary further right.
At a rally in Topeka Saturday night, President Trump said, “I stand before you today on the heels of a tremendous victory for our nation, our people and our beloved Constitution.”
Earlier on Twitter, the president called Kavanaugh’s imminent swearing-in “very exciting!”
The Supreme Court released a photograph of the private swearing-in ceremony showing Kavanaugh taking the oath from Roberts. Kavanaugh was accompanied by his wife and two young daughters, who the nominee said in combative testimony had been “destroyed’’ by the allegations against him and Democrats bent on killing his nomination at all cost.
The confirmation made Kavanaugh Trump’s second successful Supreme Court nominee after Neil Gorsuch last year. It had appeared to be on track to be an easy triumph for Trump and his conservative allies, who wanted to put a fifth reliably conservative justice vote on the court. But the nomination became engulfed in serious allegations of sexual assault by Kavanaugh when he was a teen and spiraled into a national debate over the prevalence of sexual assault in American culture and the very credibility of the Supreme Court itself.
Christine Blasey Ford testified in front of the Senate Judiciary Committee that he had drunkenly groped her and covered her mouth to stifle her screams, offering searing memories of his laughter and her fear that he might accidentally kill her. Kavanaugh strongly defended himself, and Trump and his allies seized on Kavanaugh’s anger as representative of men who are falsely accused.
For Democrats, as well as scores of survivors of sexual assault who have spoken up in support of Kavanaugh’s accusers, his confirmation Saturday represented a stark defeat.
“As I watch many of the senators speak and vote on the floor of the Senate, I feel like I’m right back at Yale where half the room is laughing and looking the other way,” said Deborah Ramirez, who accused Kavanaugh of exposing himself to her at a party when the two were in college. “Only this time, instead of drunk college kids, it is US senators who are deliberately ignoring his behavior. This is how victims are isolated and silenced.”
On Saturday, lawmakers rose one by one on the Senate floor to render their verdict on Kavanaugh after a weeks-long partisan brawl that both sides agreed had left the courtly chamber bitter and battered.
“Truly, Judge Kavanaugh’s confirmation is a low moment for the Senate, for the court, for the country,” said Charles Schumer of New York, the Senate minority leader.
Despite weeks of turbulent debate, the vote fell largely along party lines, with two exceptions. Joe Manchin, the West Virginia Democrat who is running for reelection in a state where Trump commands strong support, stood up, leaned forward, voted in support of the nomination, and then gazed up at a female protester who yelled, “I am a survivor of sexual assault” before she was removed, screaming, by officers in the gallery.
Moments later, Lisa Murkowski, the Alaska Republican, rose to her feet, her mouth set in a grim line, and said, “No.” (She later changed her vote to “present,” which was a gesture of collegiality, preserving the 2-vote margin, because Senator Steve Daines of Montana was out of town and unable to record his “Yes” vote.)
Murkowski and Susan Collins, the Maine Republican whose support of Kavanaugh seemed to guarantee his confirmation, embraced on the floor after the vote. As the final count was read out, a lone protester called out: “This is a stain on American history, do you understand that?”
The confirmation effort was a partisan brawl from the start, because Kavanaugh, a Yale-educated judge on the D.C. Circuit Court of Appeals, was expected to be a more reliably conservative judge than the outgoing justice, Anthony Kennedy, who sometimes joined the liberal majority on cases involving gay rights, abortion rights, and affirmative action.
Kavanaugh, who had worked for Kenneth Starr as he investigated President Clinton and in George W. Bush’s White House, was considered an ideal pick by a group of legal conservatives, including conservative organizations like the Federalist Society and the Heritage Foundation, that have been working for decades to remake an American judiciary that they feared had become far too liberal.
“There are only nine Supreme Court justices, they often serve for decades, and I think that getting a committed textualist and originalist on the court is a very important development in terms of shaping the direction of the law in our country,” said John Malcolm, the vice president of the Institution for Constitutional Government at the Heritage Foundation, a conservative think tank.
Malcolm had put Kavanaugh on his short list of preferred justices in early 2016, before Trump had even become the presidential nominee. But the effort to remake the judiciary went back much further than that.
“It’s been years, and really building post Roe vs. Wade,” said Benjamin Barton, a professor of law at the University of Tennessee. “The project was to appoint conservative justices who would not drift away from their original conservative principles. That was an explicit goal of Heritage and the Federalists, and it’s gotten to the point now where they’re in fact in charge of helping to select who the justices are going to be.”
Legal experts say that, with Kavanaugh on the bench, some legal protections favored by progressives may be rolled back.
“He’ll vote to limit Roe v. Wade, he’ll vote to limit gay rights and to limit controls on political expenditures,” said Alan Dershowitz, the emeritus Harvard professor who describes himself as a liberal Democrat but has frequently defended Trump on Fox News. “That’s the cost we pay for electing a Republican president. It’s part of a system.”
Dershowitz suggested Kavanaugh’s excoriating confirmation process could affect some of his votes. “His job now for the next five years is going to be rebuilding his reputation, and I think he’s looking to do that in ways that maybe will surprise people,” Dershowitz said, adding he expected Kavanaugh will care deeply about due process and free speech.
Laurence H. Tribe, another professor at Harvard Law School who has been a frequent critic of the president, decried the process of selecting Supreme Court justices as fundamentally undemocratic.
“Of the five justices picked by Republicans, including Kavanaugh, four were nominated by presidents who first took office after losing the popular vote — and most, including Kavanaugh, were confirmed by senators representing far fewer voters than the senators voting no,” Tribe said, in an e-mail.
As Saturday wore on, more than 1,000 protesters massed on Capitol Hill. Young girls carried signs vowing they would remember Kavanaugh when they were old enough to vote, and people chanted, over and over, that they believed the claims of the survivors.
Elizabeth Warren, the Massachusetts Democrat, stepped to the microphone in front of the Supreme Court and said the stakes for the country could not be higher.
“What the US Senate is about to do hurts,” Warren said. “It hurts every survivor of sexual assault who has been ignored, it hurts every woman who has been told to sit down and shut up, it hurts every person who will be on the losing end of a Kavanaugh swing vote against them and in favor of states that keep American citizens from voting, in favor of corporations that cheat consumers, in favor of gun traffickers who put our children at risk.”
Touting what she called a “30-day plan,” she urged Democratic voters to retake the House and Senate in the midterm elections.
But Mitch McConnell of Kentucky, the Senate majority leader who engineered the victory, said after the confirmation that he believed the angry battle over Kavanaugh would motivate Republican voters.
“We finally discovered the one thing that would fire up the Republican base and we didn’t think of it. The other side did it,” McConnell said.
“The tactics that have been employed both by Judiciary Committee Democratic senators, and by the virtual mob that’s assaulted all of us in the course of this process, has turned our base on fire.”