Some Missouri law and Supreme Court scholars are troubled by the confirmation process of current high bench nominee Brett Kavanaugh.
A specialist at the University of Missouri in Columbia (MU) would be one of them. Professor Richard Reuben is a former Supreme Court news reporter who covered the 1991 Senate hearings in which Anita Hill accused then high court nominee Clarence Thomas of sexual harassment.
Reuben does not think the Republican majority in the U.S. Senate Judiciary Committee has conducted the confirmation process for Judge Kavanaugh well. “The has not been a deliberative process,” said Reuben. “This has been a sham.”
Kavanaugh is President Trump’s nominee to replace Justice Anthony Kennedy, who retired in June. He’s been accused of sexual misconduct by at least three women who have gone public with their allegations in the last few weeks and days.
Last weekend, attorneys for research professor Dr. Christine Blasey Ford arranged for the Senate committee to hear her accounting of sexual assault allegations she’s leveled against Kavanaugh.
Thursday, she told the committee she is “100 percent” certain Kavanaugh assaulted her when they were in high school. Ford says the incident occurred at a party in a suburban Washington D.C. home when she was 15 and Kavanaugh was 17 in 1982. Her testimony was followed by that of Judge Kavanaugh.
Democrats wanted a third possible witness, Mark Judge, to appear before the committee. Judge is a high school friend on Kavanaugh who Ford contends was in the room when the alleged sexual assault took place.
Democrats also pushed for an FBI investigation similar to the one conducted in 1991 after Anita Hill’s sexual assault allegations against Justice Thomas, who was subsequently confirmed to the court.
MU’s Professor Reuben thinks Ms. Ford can thank Ms. Hill for more favorable conditions to come forth with claims of sexual misconduct 27 years later. “Ms. Ford has the benefit of the wind at her back with the #MeToo movement behind her,” Reuben said. “In some respects, Anita Hill’s testimony kicked off that movement. She was alone.”
The Judiciary Committee voted along party lines 11-10 to send Judge Kavanaugh’s nomination to the Senate floor. Republican Senate Majority Leader Mitch McConnell had said a confirmation vote could come as early as Saturday.
But after the vote, Republican panel member Jeff Flake of Arizona, who chose not to run for reelection in November, called for a week delay so an FBI investigation can be conducted. Flake was subsequently backed up by Republican Lisa Murkowski of Alaska and Democrat Joe Manchin of West Virginia, who’s running for reelection in a state President Trump carried by more than 43 percent in 2016. The full Senate then agreed to the investigation and delayed the confirmation vote for a week.
Similarities have been drawn between Kavanaugh’s presentation Thursday that of Justice Thomas in that both men were angry before the Senate Committee. Professor Reuben points out that Thomas, as a black man, came from a historical context of race and was able to legitimize his anger in that context.
He said Kavanaugh’s anger lacked depth and was excessive. “He was intemperate in a way that I have never seen a Supreme Court nominee including, Clarence Thomas,” Reuben said. “Clarence Thomas was angry, and he was forceful, but he wasn’t rude.”
As a journalist, Professor Reuben covered the U.S. Supreme Court and other legal issues for the ABA (American Bar Association) Journal. In addition to covering the Clarence Thomas confirmation, he reported on the rejection of Judge Robert Bork to the Supreme Court in 1987. Bork, who was nominated by Republican President Ronald Reagan, failed to be confirmed after he strongly came out against abortion during his Senate hearing.
Law Professor Greg Magarian of Washington University in St. Louis specialized in Constitutional Law and American Politics. He clerked for Supreme Court Justice John Paul Stevens, a liberal voice on the bench who retired in 2010.
He was deeply troubled by Kavanaugh’s presentation in front of the Judiciary Committee Thursday, saying it did not represent behavior appropriate for a Supreme Court judge. “The fact that he was talking like a Republican conservative political operative rather than someone who was appealing for a lifetime appointment to a job where you’re supposed to be able to weigh facts and legal arguments objectively and without bias, it was very troubling,” Magarian said.
He’s also concerned that the Senate process for confirming nominees has become dangerously over-politicized. Magarian questions why Senate Majority Leader Mitch McConnell has been insisting on a rapid confirmation of Kavanaugh. “I just don’t see why he’s so worried about pushing this through before the midterms unless it’s about getting out the base. And that’s really not a good reason.”