As the dust settles on what is arguably one of the most controversial judicial appointments in US political history, experts are still trying to gauge the fallout. Brett Kavanaugh’s nomination was always bound to be a politically charged issue in a Presidency marred by controversy and extreme polarization of the Capitol, media, and public alike. In the end, it all boiled down to the decisions of a handful of senators from both camps.
Judge Kavanaugh Confirmation – Who Voted How & Why
-By Preetam Khaushik
As the dust settles on what is arguably one of the most controversial judicial appointments in US political history, experts are still trying to gauge the fallout. Judge Kavanaugh’s nomination was always bound to be a politically charged issue in a Presidency marred by controversy and extreme polarization of the Capitol, media, and public alike. In the end, it all boiled down to the decisions of a handful of senators from both camps.
The Prelude – Why Judge Kavanaugh Nomination Was Bound To Be Contentious
Even if the sexual misconduct allegations had never happened, the nomination of Brett Kavanaugh was bound to raise strong opposition from Democrats and liberals. Kavanaugh has a long track record of conservative decisions during his tenure in the DC Courts.
Senate Republicans had blocked President Obama’s nomination of Merrick Garland to the Supreme Court, invoking the “Biden Rule.”Any future nominations made by a Republican president was bound to draw stiff opposition.
The successful appointment of Neil Gorsuch to that spot by President Trump in 2017 shifted the Supreme Court firmly to the right wing. With the retirement of Justice Anthony Kennedy, the swing vote position in the 9-member court panel is up for grabs.
And in the 54-year-old Kavanaugh, the conservatives had a shot at creating a solid 5-4 majority, expected to last for decades. This could potentially have a massive impact on future cases on issues like gun control, abortion rights, and immigration.
The Run-up To The Vote
Everything started with the retirement announcement by Justice Anthony Kennedy in June 2018. In July, President Trump nominated Brett Kavanaugh, who had been a top contender for the post.
Confirmation hearings held in September, with Democrats questioning Judge Kavanaugh regarding his views on crucial issues like abortion, gun control, and presidential powers. The first reports of allegations of sexual misconduct and assault surface days after the confirmation hearings. Three women come forward in public with detailed accusations against Kavanaugh.
The Senate Judicial Committee held a special session on September 27th, where Professor Ford presented her accusations of sexual assault against Kavanaugh. In his strongly worded testimonial, Judge Kavanaugh refuted all allegations. The Committee decided to hold confirmation vote in Senate a day after the session.
In a rare show of bipartisan spirit, Senators Jeff Flake (R-Ariz.) and Christopher Coons (D-Del.) strike an agreement to postpone the vote in favor of a quickFBI investigation. The investigation report is submitted to the Senate on October 4th. A cloture vote is passed on the 5th, followed by the final vote on Kavanaugh confirmation the next day.
The Equation In the Senate Prior To The Vote
The Republican Party holds a slender majority in the US Senate, with 51 seats. The opposing Democrats have 47 seats. There are two independent Senators who sit in caucus with the Democrats, bringing the final equation to 51-49. In the highly charged partisan atmosphere leading up to the confirmation vote, both parties were expected to close ranks.
The focus turned to potential swing votes, which mainly included Democrats facing elections in red states, and Republicans willing to vote against their party in favor of personal principles. Several senators were identified as potential swing votes: Jeff Flakes, Susan Collins, and Lisa Murkowski from the Republican camp and senators Joe Manchin, Joe Donnelly, Jon Tester, and Heidi Heitkamp from the Democrats.
The Republicans could afford to lose only one vote if they wanted to succeed. Losing one Republican vote would have resulted in a tie, where they could depend on Vice President Mike Pence to cast his vote as a tie-breaker. Democrats needed at least two votes from the opposing camp, and prevent any defections from their 49 Senators to succeed.
How The Senators Eventually Voted, And Why?
Senator Jeff Flakes (R-ARIZ.)
The Arizona Republican has been a staunch critic of President Trump and his policies since the outset. A stalwart of old-line conservatism, Flake’s pro-immigrant, pro-free trade, and pro-internationalist views led him to conflict with the President on numerous occasions. And since he declared his retirement from the Senate at the end of the term, he was under no compulsion to toe the party line during the vote.
Jeff Flake was reportedly deeply troubled by the testimony of Kavanaugh as well as his accusers and opted to delay the confirmation vote in favor of an FBI investigation. The FBI report seemed to have assuaged any doubts he may have had against the Supreme Court nominee, and the Senator voted in favor of Kavanaugh during both the cloture vote and the final vote.
Senator Susan Collins (R-MN)
The Maine Republican was one of the three Republicans who voted against their party motion to stop the repeal of Obamacare in July 2017. Considering her past form, and since she was one of the few women Republicans in the Senate, many considered her to be a key swing vote candidate. Following the FBI report, Susan Collins supported Kavanaugh’s nomination and voted for him in the final vote. According to her comments after the vote, she felt that Kavanaugh was telling the truth in his Judiciary Committee testimony.
Lisa Murkowski (R-AK)
Along with Susan Collins, Murkowski was one of the three Republicans who voted for Obamacare in 2017. And ever since the sexual assault allegations against Kavanaugh surfaced, she had been one of the most vocal Republicans asking for delaying of the confirmation vote.
During a procedural vote before the final vote, she was the only Republican to vote against Brett Kavanaugh. During the final vote, she chose to use a quirky rule to abstain from voting in support of Kavanaugh. Senator Murkowski made a pairing agreement with Democrat Senator Steve Daines of Montana who could not be present during the vote.
Lisa Murkowski chose to oppose Kavanaugh to express her solidarity with sexual assault victims. The seator also explained that she considered Brett Kavanaugh to be a “good man,” but that he was “not the right man for the court at this time.
Joe Manchin (D-WV)
Like his Republican peers in the swing vote group, Joe Manchin has a history of breaking ranks with his party in crucial Senate votes. He was one of a handful of Democrats who supported Neil Gorsuch’s confirmation to the Supreme Court in 2017. And in 2018, he was the sole Democrat senator to vote for Kavanaugh.
As he is facing a tough re-election in a state that voted for Donald Trump in the 2016 elections, Senator Manchin felt that he had to support Kavanaugh. Voting against the Republican motion could have seriously affected his chances of getting another term in the Senate.
Joe Donnelly (D-IN), Jon Tester (D-MT), Heidi Heitkamp (D-ND)
All three are Democrat senators facing potentially tough reelection campaigns in states that voted for Trump in 2016. And Donnelly and Heitkamp had voted in favor of Republican nominee Neil Gorsuch in 2017. But the swirling sexual assault allegations against Kavanaugh persuaded all three to oppose his confirmation during the final vote.
The final result of the Kavanaugh vote mirrored the actual situation in the Senate and the nation as a whole. The Republicans had a slender majority and they managed to pull off a massive victory with far-reaching consequences. At the end of the day, it doesn’t matter whether Brett Kavanaugh was confirmed by a margin of two votes or twenty.
The Conservatives have their man in the Supreme Court for life and a potentially game-changing majority for the foreseeable future. For the liberals and Democrats, it is yet another blow in a series that started in 2016. The nation remains more polarized than ever, with both camps energized for the upcoming mid-terms. If the Kavanaugh confirmation vote is any indication, the results are going to be too close to call.