Kavanaugh Is Confirmed to U.S. Supreme Court After Bruising Battle

By Mark Walsh — October 06, 2018 4 min read

The U.S. Senate on Saturday narrowly confirmed Brett M. Kavanaugh to the U.S. Supreme Court, after a bruising fight that included Kavanaugh’s denial of sexual misconduct allegations from his high school and college years and scrutiny of his views on such education issues as affirmative action in admissions, private school vouchers, and prayers in public schools.

Kavanaugh, 53, will succeed Justice Anthony M. Kennedy, who retired July 31. Many observers expect him to pull the court to the right in education by opposing race-conscious programs, being more sympathetic of religious expression in public schools, and requiring states to include religious schools in general aid programs.

After a key procedural vote on Friday of 51-49, Saturday’s final vote on confirmation was 50-48, with one Republican, Sen. Steve Daines of Montana, absent because of his daughter’s wedding, and Sen. Lisa Murkowski, R-Alaska, voting “present” as a courtesy to Daines despite her announced opposition to the nomination.

Kavanaugh was to be sworn in Saturday evening, the Supreme Court announced. Chief Justice John G. Roberts Jr. was to administer the constitutional oath and Kennedy was to give the judicial oath in a private ceremony at the court.

President Donald Trump tweeted about the confirmation of his second nominee to take a seat on the high court, after Justice Neil M. Gorsuch last year.

“I applaud and congratulate the U.S. Senate for confirming our GREAT NOMINEE, Judge Brett Kavanaugh, to the United States Supreme Court,” Trump said. “Later today, I will sign his Commission of Appointment, and he will be officially sworn in. Very exciting!”

Kavanaugh’s nomination became dominated by charges of sexual assault from Christine Blasey Ford, a 51-year-old research psychologist in northern California who alleged that Kavanaugh had sexually assaulted her at a 1982 party when both were high school students at separate private schools in the Maryland suburbs of Washington.

Ford testified about the allegations in a dramatic session before the Senate Judiciary Committee on Sept. 27, while Kavanaugh appeared later and angrily denied that he was at such a party or had assaulted Ford.

The committee advanced Kavanaugh’s nomination, but agreed to a plan to have the FBI investigate the charges from Ford as well as from a second accuser, Deborah Ramirez, who alleged that Kavanaugh has exposed himself to her at a dorm party in the 1980s, when both were students at Yale.

The FBI completed its investigation in less than a week, with Republicans who read its report concluding that the accusers’ charges were not corroborated.

“These fantasies about Judge Kavanaugh being some sort of serial high school or college predator have been exposed as only that—myths not based on fact,” Sen. John Cornyn, R-Texas, said on the floor on Oct. 5.

Democrats asserted that the investigation had been too limited in scope.

“Senate Republicans allowed only a handful of witnesses to be interviewed by the FBI,” Sen. Richard J. Durbin, D-Ill., said on the floor, also on Oct. 5. “Of course, you will not find corroboration if the investigation systematically excludes corroborating witnesses.”

The initial portion of Kavanaugh’s confirmation hearing, in early September, included questions about affirmative action, prayer in schools, and gun rights as they related to school shootings.

The nominee had a much-dissected interaction with the father of a student who was slain in February in the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Fla. When the father, Fred Guttenberg, sought to shake hands with Kavanaugh at the lunch break of his first day of testimony, Kavanaugh appeared to refuse. Kavanaugh later said he thought Guttenberg was a protestor. “I would have shaken his hand, talked to him, and expressed my sympathy,” Kavanaugh said.

On race in education, Kavanaugh told senators that the landmark Brown v. Board of Education of Topeka school desegregation ruling was “the greatest moment in Supreme Court history.” Pressed on his views on race preferences in education, Kavanaugh answered carefully that current Supreme Court precedent allows such efforts in certain circumstances.

On religious expression in public schools, Kavanaugh said, “Religious speech is entitled to a place in the public square and not to be discriminated against.”

Kavanaugh did not specifically address private school vouchers, but he helped to defend a Florida program that included religious schools, and during the hearing he spoke approvingly of a 2017 Supreme Court decision, Trinity Lutheran Church of Columbia v. Comer, which held that a state could not bar a church from a state grant program to improve children’s playgrounds. The case is viewed by religious conservatives as one that might help those who argue that states may not bar religious schools from voucher and education aid programs.

A version of this news article first appeared in The School Law Blog.

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