By Bethany Erb
Judge Brett M. Kavanaugh’s recent nomination to the Supreme Court has not been without controversy. After President Donald Trump nominated the federal appeals court judge in Washington, on July 9, 2018, Democratic opposition to Trump’s decision has steadily increased in fervor and vehemency. The vocal opposition by Democratic senators in Kavanaugh’s Senate hearings is just a snapshot of the party’s harried attempts to discredit the conservative nominee. Sen. Corey Booker (D-NJ) claimed that he released “committee confidential” e-mails pertinent to Kavanaugh’s time as a White House aide to President George W. Bush—a claim which the GOP quite rightly disputes: the e-mails had previously been cleared by the GOP. Sen. Kamala Harris (D-CA) led out a controversial cross-examination of Kavanaugh, which included her still un-founded suggestion that Kavanaugh had previously discussed Robert S. Mueller’s investigation with lawyers at Kasowitz Benson Torres, the law firm founded by President Trump’s personal lawyer. Ultimately, the Democratic attempts to stall the nomination of Kavanaugh have been relentless, unproductive, and less convincing than eye-roll inducing.
Now, Kavanaugh’s nomination has also become a #MeToo moment—albeit a very politicized #MeToo moment. After Christine Blasey Ford, a professor at Palo Alto University, recently accused Brett M. Kavanaugh of sexually assaulting her in the early 1980s, the pressure from Democrats for the Senate to postpone Kavanaugh’s nomination has only increased. Yet, the delayed reporting of the accusation after the alleged act creates obvious difficulties for any legal investigation team to corroborate Ford’s accusation against Kavanaugh. Akhil Amar of Yale Law School, a defendant of Kavanaugh before the Senate Judiciary Committee, said there are “difficulties for [any investigation] to discover the truth of what occurred” yet he still hopes the confirmation is postponed until Kavanaugh and Ford can state their case. Amar, speaking to media reporters, acknowledged the inherent difficulty in proving Ford’s accusation against Kavanaugh since “memories fade and physical evidence deteriorates and eyewitness die or move.”
Rising Opposition to Kavanaugh’s Nomination
Despite the difficult task to prove Ford’s accusations as credible, polled public opposition to Kavanaugh’s nomination has risen after Ford’s sexual assault accusation—opposition still breaks down along party lines. According to an NBC News/Wall Street Journal poll, opposition has surged from 29 percent to 38 percent of registered voters. On the other hand, 34 percent of registered voters support his confirmation—a percentage that has stayed steady since August. Both the Trump Administration and Republican registered voters still support Kavanaugh’s nomination, while Democratic disapproval remains steady.
Though the American public seems to increasingly view Kavanaugh’s nomination with disfavor, a more relevant question remains unanswered: could the Senate still nominate Kavanaugh to the Supreme Court? Despite the incessant accusations and charges made against Kavanaugh, his potential nomination still seems secure. Even if Democrats continue to give Kavanaugh the “Bork treatment,” Kavanaugh’s nomination appears inevitable.
Kavanaugh Needs Just Fifty Senate Votes
Thanks to the “nuclear option,” coined by former Republican leader, Mississippi Sen. Trent Lott, and first initiated by Senate Majority Leader, Harry Reid (D-NV), in 2013, the Senate rules now have a precedent that “nominees for cabinet posts and federal judgeships [can] be confirmed with just 51 votes.” With Republicans holding a narrow 51-49 majority in the Senate, 50 Republican senators will have to vote ‘yea’ for Mike Pence to step in and caste the tie-breaking vote in Kavanaugh’s favor.
That being said, the president’s nominee is not guaranteed all 51 Republican votes. Moderate GOP Senators Lisa Murkowski and Susan Collins have both expressed concern over Kavanaugh’s conservative views on Roe vs. Wade, specifically his stance on abortion rights. With only 50 Republican Senate votes needed, it is still likely that Republican Senators will view the nomination of a known textualist like Kavanaugh as the better alternative to a Democratic nominee being voted in after the 2020 presidential election.
Kavanaugh’s Denial of Sexual Assault May be Truthful
National Review writer Ed Whelan, president of the Ethics and Policy Center, has just issued a series of posts that suggest Whelan knows of evidence, which could clear Kavanaugh’s name. Whelan wrote a tweet on Sept. 18, 2018, which reads: “By one week from today, I expect that Judge Kavanaugh will have been clearly vindicated on this matter…I expect that compelling evidence will show his categorical denial to be truthful.” As a prominent political commentator within the conservative legal sphere, Whelan is likely to have access to evidence in Kavanaugh’s favor. Whelan risks tarnishing his journalism’s credibility if his assertion of Kavanaugh’s innocence can or could be proven false. With Whelan’s apparent confidence, it seems likely—as of right now—that Ford’s sexual assault accusation is misdirected at Kavanaugh, whether intentionally or not.
What’s more, Rich Lowry, Editor of National Review, has also put his credibility on the line to support Whelan’s statement. As Lowry writes, “If, based on what we know now, this accusation keeps Kavanaugh from the Court, it will be a new low. The Senate will have embraced a new world where the existence of an allegation, regardless of whether it can be proven, is enough to stop a nominee and destroy his good name.” Lowry makes the larger philosophical argument that Kavanaugh’s nomination should not be stalled based on—at this point—unproven and seemingly impossible to prove allegations. If no new evidence comes out in favor of Ford, and if additional evidence appears in Kavanaugh’s favor, it is difficult to imagine that Republican Senators would not echo Lowry’s sentiment that Kavanaugh’s nomination be decided based on an irrefutable track record and not he said, she said allegations.
Kavanaugh’s Impeccable Record
If Ford’s sexual assault accusations against Judge Brett Kavanaugh are misdirected, Kavanaugh’s stellar legal career and textualist position towards the Constitution gives him a chance to win support from moderate Democrats and conservative Republicans. With a “well-qualified” rating from the American Bar Association, Judge Brett Kavanaugh may be “the most qualified Supreme Court nominee in generations,” according to USA Today. A spokesperson for the White House praised Kavanaugh for his twelve years of outstanding service on the United States Court of Appeals for the D.C. Circuit. During those twelve years, Kavanaugh wrote more than 300 opinions and heard more 2,000 cases. Encouragingly, the Supreme Court has vindicated thirteen of his opinions—an “unheard of record of influence across the ideological spectrum.”
With Kavanaugh’s tendency to vote based on precedent, not identity politics or ideological preferences, he has managed to vote both for and against the Republican National Committee, the Bush Administration agencies, and other conservative platforms and agencies. His rulings seem to reflect an apparent bipartisan attempt to judge on the basis of law not shifting politics. If Kavanaugh is cleared of these sexual assault accusations, his model character, devotion to precedent, and his competence in the legal field makes him an obvious nominee for the Supreme Court. Based on his record, it will be more difficult for Democratic Senators to justify why Kavanaugh is not qualified than for Republican Senators to justify why he is qualified.
The Senate’s Still Out
With the American public and Senate members awaiting further news within the Kavanaugh #MeToo saga, it remains unclear whether another judge will fill Associate Justice Anthony Kennedy’s seat anytime soon. Yet, with any damning evidence against Kavanaugh’s nomination still uncorroborated, the potential for a conservative Republican to fill Kennedy’s seat remains high. Unless Christine Blasey Ford provides new evidence, which unequivocally indicts Kavanaugh, Kavanaugh’s nomination to the Supreme Court will likely still proceed. The overall situation still looks like it’s in Kavanaugh’s favor, but the Senate’s still out on this one.
 “Trump Taps Federal Appeals Court Judge Brett Kavanaugh for Supreme Court” NBCNews (July 9, 2018): Accessed September 19, 2018, https://www.nbcnews.com/politics/supreme-court/trump-taps-federal-appeals-court-judge-brett-kavanaugh-supreme-court-n889921.
 Stephen Collinson, “Booker Releases Kavanaugh Documents but GOP Insists They Were Already Cleared” CNN (September 6, 2018): Accessed September 7, 2018, https://www.cnn.com/2018/09/06/politics/kavanaugh-hearing-document-booker-testimony/index.html.
 Michael McGough, “Kamala Harris and the Curious Case of the Kavanaugh ‘Conversation’” Los Angeles Times (September 7, 2018): Accessed September 7, 2018, http://www.latimes.com/opinion/la-ol-enter-the-fray-kamala-harris-and-the-curious-case-of-1536356316-htmlstory.html.
 Emma Brown, “California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks out about Her Allegation of Sexual Assault.” The Washington Post (September 16, 2018): Accessed September 16, 2018, https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html?utm_term=.04958a884804.
 Isaac Stanley-Becker, “Kavanaugh’s Accuser Waited Years to Come Forward. Does That Undercut Her Claim?” The Washington Post (September 18, 2018): Accessed September 18, 2018, https://www.washingtonpost.com/news/morning-mix/wp/2018/09/18/kavanaughs-accuser-waited-years-to-come-forward-does-that-undercut-her-claim/?utm_term=.ddbd80086e84.
 Jacob Pramuk, “Opposition to Trump Supreme Court Pick Kavanaugh Rises after Hearings, Assault Claim: NBC/WSJ Poll” CNBC (September 20, 2018): Accessed September 20, 2018, https://www.cnbc.com/2018/09/20/opposition-to-supreme-court-pick-brett-kavanaugh-rises-after-assault-claim-poll.html.
 “Nuclear Option: Why Trump’s Supreme Court Pick Needs Only 51 Votes.” CBS News (July 9, 2018): Accessed September 21, 2018 https://www.cbsnews.com/news/nuclear-option-why-trumps-supreme-court-pick-needs-only-51-votes-in-the-senate/.
 Allahpundit, “NRO’s Ed Whelan: ‘Much More’ Is Coming to Show That Kavanaugh Is Innocent” Hot Air (September 19, 2018): Accessed September 19, 2018. https://hotair.com/archives/2018/09/19/nros-ed-whelan-much-coming-show-kavanaugh-innocent/.
 Richard Wolf, “Brett Kavanaugh: Supreme Court Nominee Straight out of Central Casting” USA Today (July 9, 2018): Accessed September 20, 2018, https://www.usatoday.com/story/news/politics/2018/07/09/donald-trump-supreme-court-pick-brett-kavanaugh/756956002/.
 “Judge Brett M. Kavanaugh Is an Exceptionally Qualified and Deserving Nominee for the Supreme Court” The White House (September 4, 2018): Accessed September 20, 2018, https://www.whitehouse.gov/briefings-statements/judge-brett-m-kavanaugh-exceptionally-qualified-deserving-nominee-supreme-court/.