U.S. Supreme Court

This morning, the 102^nd Supreme Court Associate Justice, Brett Kavanaugh, took his seat on the Supreme Court. (The Court’s official biography and photographic record of the swearing-in ceremony are available here.) After the Chief Justice, John Roberts, wished Kavanaugh a “long and happy career in our common calling,” the Court got down to business with a couple of arguments involving matters of criminal procedure. Thankfully, it was “business as usual” for the Court as Justice Kavanaugh joined the other Justices in asking a handful of questions of both advocates, and no protestors disrupted the solemnity of the arguments.

In today’s final Kavanaugh Column, we offer a summation of the Supreme Court confirmation experience, as we look back and consider the lessons learned in a historic confirmation battle, and look ahead to ask what the confirmation of Justice Kavanaugh may hold for the future of pro-life legal efforts – and of Roe v. Wade itself.

First, we should all be very clear about what this bruising fight was really about: the fundamental “right” to destroy human life in the womb. As William McGurn said recently in the Wall Street Journal, “the frenzy surrounding his nomination isn’t really about [Brett Kavanaugh]. It’s about Roe v. Wade.” There were other issues raised in the confirmation hearing – executive privilege, affordable healthcare, the Second Amendment – but they were strictly makeweight arguments that were intended to add gravity to the opposition’s efforts to hold up Roe. Roe is the heavenly body around which all of the Left’s values revolve, and the reason for its cosmology of an ever-evolving “living constitution.”

McGurn observes that the late Justice Antonin Scalia predicted America would come to this in his dissent in Planned Parenthood v. Casey in 1992:

Far from settling the issue [of abortion], Scalia wrote, Roe remains brittle because it lacks constitutional warrant. It represents the triumph of an “Imperial Judiciary” which “intensifies” the polarization over abortion by keeping the issue out of the democratic process, thus depriving the losers the compensating “satisfaction of a fair hearing and an honest fight….”

If the Supreme Court is simply to be a vehicle for choosing among competing values, in a democracy it should be the values of the voters that prevail. Thus, “confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights.”

Hawaii Senator and Judiciary Committee Member Mazie Hirono, who with all Democrats save one voted against Kavanaugh, remained outspokenly critical of Justice Kavanaugh for both his record and the allegations against him. Hirono said she “doubts” the Supreme Court will overturn Roe, but she thinks it will “continue to chip away” at the right to abortion. And the confirmation hearing has damaged him, she claimed: “He’s going to be on the Supreme Court with a huge taint and a big asterisk after his name.”

So the biggest takeaway from this regrettable chapter in American political history is that pro-abortion forces will stop at nothing to protect the cherished right to abortion. As sobering as that is, it also offers a simple lesson for those of us committed to protecting life: we have to fight harder and smarterand be willing to go the distance. As abortion-related cases come before the Supreme Court, we do expect the Court to revisit Roe v. Wade, and ultimately to strike it down. Already there are cases making their way up through the lower courts that the Supreme Court could agree to hear and use to reconsider and overturn Roe, including cases based on AUL model bills such as the Prenatal Nondiscrimination Act, the Women’s Protection Act and our model legislation to defund Planned Parenthood and the abortion industry. But the fight doesn’t start there; it starts in state legislatures across the country, where the will to defend unborn persons is strongest, and in federal and state courts that will hear Planned Parenthood’s challenges to commonsense health and safety regulations that impact their bottom line. Together, we are rebuilding a Culture of Life in America, state by state, issue by issue. We believe Justice Kavanaugh’s intelligence, wisdom and compassion will lend much assistance to that effort, but we are looking beyond a fifth pro-life vote on the Supreme Court, to a nation whose laws ensure that every human life is welcomed, cherished and protected.

On Saturday afternoon, October 6, 2018, the Senate voted to confirm the nomination of Judge Brett Kavanaugh as Associate Justice on the U.S. Supreme Court. Justice Kavanaugh will take his seat when the Court opens for business on Tuesday, October 8^th.

The final vote was 50-48. Republican Senator Susan Collins of Maine voted in favor of Kavanaugh, as she announced she would on Friday. Republican Lisa Murkowski of Alaska had announced her intention to vote against Kavanaugh, but instead, she voted “present,” as a favor to her colleague, Montana Senator Steve Daines. Daines had planned to travel back to DC from his daughter’s wedding if the vote had been close, but Murkowski’s vote made that unnecessary. On the Democratic side, Joe Manchin of West Virginia was the sole Kavanaugh vote.

Americans United for Life President and CEO, Catherine Glenn Foster, celebrated the new pro-life majority on the Supreme Court. “Today is a historic day for all Americans who support and work to advance the culture of life,” Foster said. “Americans United for Life applauds the Senate for overcoming partisan politics and gridlock to confirm Brett Kavanaugh. Justice Kavanaugh’s distinguished judicial career has been built upon his constitutionalist approach to law, and we trust that this will serve all Americans well whenRoe v. Wade inevitably comes before the Supreme Court for review.”

What Justice Kavanaugh’s confirmation means is that for the first time in 26 years, our nation has a majority of Supreme Court justices who are not emotionally invested in preserving Roe v. Wade as their legacy, and who understand that not only does life begin at conception, as affirmed by medical science, but also that Roe was an egregious example of constitutional overreach. AUL looks forward to the day when Roe is banished to its proper place among the Court’s most shameful decisions, like the “separate but equal” error of Plessy v. Ferguson, the egregious decision justifying the internment of Japanese Americans in World War II (Korematsu), and worst of all, Dred Scott v. Sandford – which, like Roe, denied the humanity of millions of Americans. With Justice Kavanaugh on the Supreme Court, we have confidence that that day is soon at hand.

Tomorrow’s final Kavanaugh Column will look back and consider the lessons learned in a historic confirmation battle, and also look ahead to ask what the confirmation of Justice Kavanaugh may hold for the future of pro-life legal efforts – and of Roe v. Wade itself.

She said yes. Senator Susan Collins, the moderate Republican whose vote was considered crucial to secure the confirmation of Supreme Court nominee Brett Kavanaugh, said this afternoon that she would vote to confirm Kavanaugh when his candidacy comes before the full Senate this weekend.

Senator Joe Manchin, the Democrat from West Virginia, announced very soon afterward that he, too, would vote in favor of Judge Kavanaugh. If so, that would make Manchin the lone Democrat to vote “yes,” after Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota announced yesterday that they would vote against Kavanaugh.

The other undecided Republican, Lisa Murkowski of Alaska, has said she will vote against Kavanaugh. If each senator votes the way he or she has said they will, Kavanaugh will be confirmed by the narrow margin of 51-49.

Collins showed a flair for the dramatic, making the long-anticipated announcement at the end of a 45-minute speech in which she decried the “circus” the confirmation process had become but defended the #metoo movement’s elevation of the stories of sexual assault survivors into the public consciousness. Although Collins said she found Kavanaugh’s chief accuser, Dr. Christine Blasey Ford, “credible” and opined that she believed Ford was indeed “a survivor” of sexual abuse, she expressed concern that none of the four people whom Ford identified as key witnesses confirmed her allegations. Collins observed that the U.S. Constitution does not set a standard by which individual senators should exercise “advice and consent,” but said she believe that our national commitment to the principle of due process mandates that charges against nominees be evaluated at least by the “more likely than not” standard.  By this standard, she said, Ford’s charge fell short.

Collins concluded with the strongest possible affirmation of Brett Kavanaugh’s character:

Mr. President, we’ve heard a lot of charges and counter charges about Judge Kavanaugh.  But as those who have known him best have attested, he has been an exemplary public servant, judge, teacher, coach, husband, and father.  Despite the turbulent, bitter fight surrounding his nomination, my fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions and so that public confidence in our Judiciary and our highest court is restored.  Mr. President, I will vote to confirm Judge Kavanaugh.

If Judge Kavanaugh is confirmed by the full Senate this weekend, he deserves to take his seat without a cloud of suspicion lingering over him. As Kavanaugh himself said last week, a seat on the highest Court in the land is too small a price to pay for one’s reputation.

Now that the FBI has concluded its supplemental background investigation into allegations by several women that Supreme Court nominee Brett Kavanaugh assaulted them after drinking heavily, senators are beginning to position themselves for the inevitable cloture vote tomorrow and a final vote of the full Senate this weekend. All day today and into tonight, the senators on the Judiciary Committee, and other senators who so desire to, are reviewing the supplemental FBI report in a closed, secured room. (Even staff are excluded, reportedly – which is probably a good thing after a former Democratic Senate staffer was charged with “doxxing” the home addresses and cell number of at least one Republican senator.)

Democratic leaders are calling the investigation “incomplete” and “a rush job.” But early signals by key Republican votes suggest that GOP senators may be lining up to give Kavanaugh final approval. Arizona Republican Judiciary Committee member Jeff Flake, whose eleventh-hour vacillation over Kavanaugh’s nomination ensured Republicans would agree to a further FBI investigation, announced, “We’ve seen no additional corroborating information.” And Maine Senator Susan Collins said, “it appears to be a very thorough investigation,” expressing her refusal to adopt the Democratic messaging – a hopeful sign for Kavanaugh’s supporters.

Republicans will need at least Flake and Collins if Kavanaugh’s nomination is to succeed because each of the fence-sitting Democrats has now said he or she will vote against him, save Joe Manchin of West Virginia – including very recently Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana. Heitkamp announced out this afternoon that she will oppose Kavanaugh because “I believe Dr. Ford,” and she explained that she wanted to send the right message to women in her situation. If all Democrats vote against the nominee, Republicans can still afford to lose one member of their own ranks and see Kavanaugh confirmed, since Vice President Mike Pence will have the tie-breaking vote in the event of a 50-50 split. In view of that fact, Senator Collins’ comment augurs positively for the nomination.

More of the same acrimony, charges and counter-charges continue to fly around the Brett Kavanaugh nomination to the Supreme Court as the FBI is quietly conducting its supplemental background investigation into allegations by several women that Kavanaugh assaulted them after drinking heavily.

All the women’s lawyers, who are active in promoting the #metoo movement, are critical of the FBI for the way it is handling the investigation. Ford lawyer complained today in a letter to the FBI that the bureau had not contacted his client. “It is inconceivable that the FBI could conduct a thorough investigation of Dr. Ford’s allegations without interviewing her,” he said. Likewise, the lawyer for Julie Swetnick, who alleges that Kavanaugh was present at parties where women were drugged and gang-raped, said the FBI had not spoken with Swetnick. And while the FBI talked to Deborah Ramirez Sunday about her allegations of wrongdoing at Yale, her lawyer also criticized the bureau, saying it didn’t appear to be pursuing leads Ramirez provided them. “We have great concern that the FBI is not conducting — or not being permitted to conduct — a serious investigation,” her lawyer said on Twitter.

FBI background investigations of this type are not public documents, but given that the report is slated for delivery to all 100 senators and White House staff, don’t expect it to remain confidential for long.

Late today, Senator Majority Leader Mitch McConnell (R-KY) announced that the FBI has concluded its supplemental background investigation into allegations by several women that Supreme Court nominee Brett Kavanaugh assaulted them after drinking heavily. McConnell filed cloture on the nomination today, meaning that the cloture vote could come on Friday. If the Senate approves cloture by a simple majority vote, a requisite thirty hours for debate would ensue, followed by a final vote by the full Senate over the weekend.

Reportedly, the plan is to have Senators review the supplemental FBI report in a closed, secured room, presumably unable to duplicate it by any means, such as taking photos of the report with their phone. But as we’ve seen with information shared by the nominee in supposedly private sessions with senators, then bruited about for the press cameras, information and disinformation about the report’s contents will fly around. Out of that toxic dust devil of rumor and innuendo will come calls to release the report, and suggestions that the FBI and the White House are hiding damning information. Ultimately, it would be better for the White House to direct the FBI to release the report, provided that innocent witnesses can be protected via redaction. That way, we’ll have, in the apocryphal phrase attributed to Dragnet’s Joe Friday, “just the facts, ma’am.”