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Justice Brett Kavanaugh and Standards of Conduct

On Saturday, the United States Senate confirmed Judge Brett Kavanaugh to the Supreme Court with a 50-48 vote, and he was quickly sworn in. The new justice's lifetime tenure, which will shift the balance of the court to the originalist faction, will commence on Tuesday.

Justice Brett Kavanaugh

The senatorial affirmation capped off a contentious three-month nomination period in which Kavanaugh was tarred as a partisan, accused by three women of sexual misconduct, and investigated by the FBI for a seventh time.

Kavanaugh's most credible accuser, Christine Blasey Ford, testified before the Senate on September 27, 2018, stating that an inebriated Kavanaugh had groped her in 1982.

Over the course of the hearing, Ford was questioned by the chief of the Special Victims Division in the Maricopa County Attorney's Office, Rachel Mitchell, who subsequently wrote a report on the findings that she extracted from the accuser's testimony.

Mitchell, certainly an authority with regards to sex crimes, wrote,

In the legal context, here is my bottom line: A 'he said, she said' case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. ... Dr. Ford has not offered a consistent account of when the alleged assault happened.

However, despite these holes, which were specifically outlined by Mitchell, Sen. Jeff Flake (R-Arizona) stated that he wouldn't vote for Kavanaugh without a one-week FBI investigation.

The probe was conducted, and prior to the cloture and confirmation votes, senators read transcripts of the interviews conducted by the FBI.

Democrats in the Senate called foul, pointing to the fact that Christine Blasey Ford wasn't interviewed by the bureau. Republicans noted that Ford had delivered an hours-long testimony for the Senate, and that the questions asked by senators and Mitchell were similar to what the FBI would've asked.

The Democrats, however, had few empirical findings to divulge. In fact, the FBI investigation further challenged Ford's testimony by revealing that the accuser had actively pressured witnesses, who denied knowledge of the incident, into embracing her testimony.

The Wall Street Journal reported that Leland Keyser, a friend of Ford, "told FBI investigators that she felt pressured by Dr. Ford’s allies to revisit her initial statement that she knew nothing about an alleged sexual assault by a teenage Brett Kavanaugh."


The FBI does not reach conclusions, but the senators who read the reports did. Senators Susan Collins (R-Maine), Jeff Flake (R-Arizona), and Joe Manchin (D-West Virginia), who reserved their votes until they saw the bureau's findings, embraced Kavanaugh and voted for him on Saturday.

Manchin took a dignified approach, waiting until he had seen the evidence before making his judgement on the nominee. However, the other members of the Democratic caucus, some of whom had publicly rejected Kavanaugh in July, predictably voted against his confirmation.

Included in the anti-Kavanaugh grouping were Senators Joe Donnelly (D-Indiana), Claire McCaskill (D-Missouri), Bill Nelson (D-Florida), Jon Tester (D-Montana), and Heidi Heitkamp (D-North Dakota), all of whom are facing tough 2018 reelection battles as Democrats in states won by President Donald Trump in 2016.

FDL Review had already projected that Nelson, Heitkamp, McCaskill, and Donnelly would be defeated by their Republican challengers, and their chances of victory have grown even smaller amid the contentious confirmation battle.

In conservative-leaning states, it isn't good form to announce the rejection of a highly-qualified Supreme Court nominee without seeing the evidence against him.


While the chances of the Democrats taking the Senate -- a far-fetched proposal to start with -- have grown even smaller, the House is still up for grabs, and the Democratic caucus has already demonstrated their willingness to nullify the Senate's vote.

Rep. Jerry Nadler (D-New York), who would lead the Judiciary Committee if the Democrats win the House, said that he will investigate Kavanaugh for perjury if the midterms go their way.

Worse yet, Sen. Mazie Hirono (D-Hawaii) wouldn't rule out the impeachment of Kavanaugh, and the Congressional Progressive Caucus -- certain to dictate Democratic policy if party wins the House -- sent a letter to the president threatening that they would invoke the process.

Efforts to remove a justice because of ideology would delegitimize the judiciary's status as a branch of government above the Congress's partisan squabbles, and the Supreme Court would just be another chip in the ruthless game of Washington politics.

This would change the trajectory of American politics for decades -- if not centuries -- and exacerbate the division between liberals and conservatives. By the new standard, Senate Republicans' rejection of Judge Merrick Garland, which was completed without the aid of ruthless character assassination, would look like a discussion at a Saturday afternoon book party rather than a spirited partisan battle.

FDL Review is sad to report on these facts, but we are also happy to say that there is an out: Voters who seek a basic standard of civility in politics can vote for Republican congressional and senatorial candidates on November 6, 2018.