Early Thursday morning in Washington, the White House sent to the Senate summaries of interviews conducted by the FBI in connection with allegations of sexual misconduct brought against judge Brett Kavanaugh, President Donald Trump’s nominee for the US Supreme Court, by Palo Alto University professor Christine Blasey Ford and subsequently, two other women, Deborah Ramirez and Julie Swetnick. Senate majority leader Mitch McConnell has set up an initial vote Friday on whether to limit debate on judge Kavanaugh and move forward. A simple majority of 51 votes will be needed for the nomination to advance. A final vote could come Saturday. What is the process by which a US Supreme Court judge is nominated and confirmed? How has this case been different?
Section 2 of Article II of the US Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…”. The President usually consults Senators before announcing a nomination. A Reuters report on Trump picking Kavanaugh in July quoted an official as saying the White House had reached out to all members of the Senate Committee on the Judiciary, and only Democrat Kamala Harris had “refused to engage”.
The Senate Judiciary Committee holds hearings on the President’s nomination. US Congressional Committees — which include Senate Committees, House Committees, and Joint Committees — are similar to Indian Parliamentary Committees, but more powerful. They decide which Bills and resolutions move forward for consideration by the House or Senate as a whole. Committee chairs can influence this process hugely.
The Judiciary Committee collects all records about the nominee. At hearings, senators on the Committee put questions to the nominee on his or her qualifications, judgment, and philosophy. Witnesses can present views supporting or opposing the nomination. The hearing process can take a few hours, or days.
At the end of the hearing, the Committee votes on the nomination and sends its recommendation to the full Senate. In 2005, the Committee rejected President George W Bush’s nominee Harriet Miers, finding her ill-prepared, after which the process of nomination began afresh. If the Committee clears the nomination, the full Senate — 100 members, two from each state — takes it up. The nominee is confirmed by a simple majority of the senators present and voting. In case of a tie, the Vice President has the casting vote. The Senate’s decision is final.
In Kavanaugh’s case, the hearing has been extraordinarily lengthy, and contentious since it began on September 4. Kavanaugh, who worked with independent counsel Kenneth Starr on the Bill Clinton-Monica Lewinsky case and served in the George W Bush White House, has been on the Court of Appeals for the District of Columbia Circuit since 2006, where he has built up a solidly conservative judicial record. He is 53, and if confirmed, he could, like Trump’s other appointment, Neil Gorsuch, 51, end up serving for decades. US Supreme Court judges have lifetime jobs. Even without Kavanaugh, the court has a 5-4 conservative majority. If elevated, he could be ruling on gay rights, reproductive rights, gun control, and matters arising out of Special Counsel Robert Mueller’s Russia investigation and civil lawsuits against Trump. Many liberals fear he could help overturn civil and individual freedoms won after struggle.
On September 16, the hearings took an explosive turn after Dr Ford told The Washington Post that the judge had assaulted her sexually in 1982, when both Kavanaugh and she were teenagers. Before the Judiciary Committee, she gave dramatic testimony, which Kavanaugh refuted. On September 29, Trump asked the FBI to investigate, and investigators subsequently contacted Deborah Ramirez, 53, who had accused Kavanaugh, her classmate at Yale, of exposing himself to her at a party 35 years ago. The FBI did not contact Dr Ford and Julie Swetnick, the third woman to accuse the judge.
What happens now
Should the Judiciary Committee, where the Republicans have a slim 11-10 majority, approve Kavanaugh, the decision will go to the full Senate, where the Republican majority is, again, a tight 51-49. Until Thursday, five senators appeared to be sitting on the fence — Republicans Jeff Flake, Susan Collins and Lisa Murkowski, and Democrats Joe Manchin and Heidi Heitkamp. An analysis by Vox concluded that the votes of Collins, Flake and Manchin — who have been working closely together and are expected to vote similarly — could make or break Kavanaugh’s confirmation.