On Saturday, the Senate confirmed the nomination of Judge Brett Kavanaugh to the United States Supreme Court. After a confirmation process that went on for approximately three months and was shrouded in political controversy, the final vote was 50-48 in favor of Kavanaugh’s confirmation.
Dr. Michael Frank, professor of political science, touts the significance of Supreme Court confirmations and explains the differences between a judicial confirmation and a criminal trial.
“It’s not a court of law,” he said. “There is no penalty for being found guilty. There’s no need—because it’s not a court of law with a penalty of imprisonment—to have proof beyond a reasonable doubt. That’s for a court of law.
“If [Kavanaugh] were on trial for sexual assault, then he would be presumed innocent until proven guilty beyond a reasonable doubt. This is about determining whether he’s the right person to serve on the Supreme Court.”
The confirmation process has been heavily publicized and politically charged since President Donald Trump announced Kavanaugh’s nomination on Monday, July 9. With midterm elections just around the corner, a Supreme Court nomination could have a profound impact on the makeup of Congress.
The contentious fire of political debate was further stoked by the leaking of a letter penned by Dr. Christine Blasey Ford, professor of psychology at Palo Alto University, that accuses Kavanaugh of sexual assault. Ford shared the letter in confidentiality with Dianne Feinstein, D-Calif., of the Senate Judiciary Committee in July. The letter was later leaked to various news publications.
In the letter, Ford accuses Kavanaugh of sexually assaulting her while they were both in high school. Ford does not remember when or where the alleged assault took place, only that it supposedly happened in Maryland in 1982.
Ford testified before Congress two weeks ago on Thursday, Sept. 27, as her own expert witness. The FBI also ran its seventh background investigation into Kavanaugh in 25 years, but found “no corroboration of the allegations made by Dr. Ford.”
Kavanaugh’s confirmation and Ford’s allegations raise important questions about the way accusations of sexual assault are handled.
According to the National Sexual Violence Resource Center, it is statistically more likely for rape to occur on college campuses. One in five women will experience sexual assault in their lifetime, whereas approximately one in four female college students will be victims of sexual assault during their time at college. With only 10 percent of victims reporting having been sexually assaulted, the vast majority of sexual violence goes unreported.
“I can’t imagine what it must be like for Ford to be mocked publicly by the president,” said Dr. Michael Frank, professor of political science. “I can’t imagine what that feels like. I can’t imagine, for survivors of sexual assault, the chilling effect of having elected officials, your government, be so dismissive of your experience.”
Frank says it’s fair to maintain that Ford’s allegations have been politicized and that the controversy surrounding Kavanaugh’s nomination and confirmation is indicative of the furthering of political division in America.
“Our parties have become more divided and more polarized since 1968,” said Frank. “The impact of that polarization has been felt in the confirmation process for Supreme Court nominees. There’s now this open warfare between the two sides with the public involved in ways that was never imagined in 1968.
“The judicial confirmation process has been getting more contentious and more political in the last couple of decades,” he said. “I think we’re seeing this really dividing our country today because that process is reaching its endpoint right now.
“I don’t think we can put that genie back in the bottle. This is going to be the nature of what we see for the foreseeable future. The only thing that would reduce that is if somehow, magically, the parties were to begin to become less polarized.”
Frank believes that we can better understand the evolution of political division on judicial nominations in the U.S. by comparing the events surrounding Kavanaugh’s nomination to those of hotly contested Supreme Court nominees throughout history.
The first nomination that stood out to Frank was that of Robert Bork. Bork was nominated by President Ronald Reagan in 1987 to serve as an associate justice of the Supreme Court. The publicity of Bork’s hearings, and the pressure placed on the Senate by the public, ultimately lead to the denial of Bork’s confirmation.
“You had this outside pressure, this outside attention, on the confirmation process that really didn’t occur before,” said Frank. “It was a way to put pressure on the Senate to make sure that he wasn’t going to be confirmed.”
Frank says that the nomination of Clarence Thomas was also pivotal in the “ratcheting up” of contentiousness in the judicial nomination process.
In 1991, President George H. W. Bush nominated Clarence Thomas, a conservative justice, to replace a liberal justice. Despite sexual harassment allegations made by Anita Hill at the eleventh hour, Thomas’ nomination was confirmed, swinging the court to the conservative side.
“There was definitely some public effort to torpedo Clarence Thomas’ confirmation,” said Frank. “A lot of that was addressing his competence as a judge.”
Frank says that there are elements of Kavanaugh’s confirmation that are similar to those of Bork and Thomas.
“Kavanaugh is viewed as an extremist, so you have that Bork thing going on,” he said. “You also have the Clarence Thomas and Anita Hill thing going on with the allegations made by Ford.
“That’s exacerbated by the fact that the #MeToo movement has been sweeping through politics, the media and Hollywood. That wasn’t the case when Thomas had his confirmation hearings.
“Moreover, Thomas was alleged to have committed sexual harassment, whereas, Kavanaugh is alleged to have committed sexual assault. There are some similarities, but I think the alleged sexual assault against Kavanaugh is a more serious charge.”