A Look Back At Kavanaugh's Confirmation Fight

Anthony Kennedy, former associate justice of the U.S. Supreme Court, right, administers the judicial oath to Associate Justice Brett Kavanaugh as his wife Ashley Estes Kavanaugh and U.S. President Donald Trump watch during a ceremonial swearing-in event in the East Room of the White House in Washington, D.C., U.S., on Monday, Oct. 8, 2018. After surviving one of the most contentious confirmation battles in American history, Kavanaugh faces the challenge of defining himself on the top court and winning the trust of his eight new colleagues.

On Oct. 8, a buzzing crowd of Washington, D.C.’s top lawyers, Justice Department officials and Trump administration figures were gathered in the White House’s East Room to witness the ceremonial oath-taking for the newly confirmed Justice Brett Kavanaugh. President Donald Trump had unveiled the Kavanaugh nomination just three months earlier.

Inside the room, Deputy Attorney General Rod Rosenstein greeted former Trump White House lawyer Greg Katsas, now sitting on the U.S. Court of Appeals for the D.C. Circuit, while the country’s top Supreme Court advocates brushed shoulders with political figures. Gibson, Dunn & Crutcher’s Helgi Walker, a prominent Kavanaugh backer, was engrossed in conversation with the American Conservative Union’s Matt Schlapp. Nearby, Arnold & Porter Kaye Scholer lawyer Lisa Blatt—whose early public endorsement of Kavanaugh drew the ire of liberal crowds—chatted with White House counselor Kellyanne Conway.

Kavanaugh was sworn in by retired Justice Anthony Kennedy, the man whom he replaced, as the other eight Supreme Court justices watched from the front row. It was a moment conservatives had been working on for years, if not decades.

But it wouldn't be an understatement to say that the road to cementing a 5-4 majority on the U.S. Supreme Court was rocky. Kavanaugh’s ascent to the high court came by the slimmest of margins, a 50-48 vote in the Senate, after his confirmation became mired in allegations of sexual impropriety.

Kavanaugh's arrival at 1 First Street, NE means, of course, that Trump’s imprint on the federal judiciary continues to grow. Trump, at press time in October, had confirmed more than 80 judges to the federal bench—two to the Supreme Court—in his first two years. Trump’s judicial machine—with a lift from White House counsel Donald McGahn and The Federalist Society’s Leonard Leo—continues to power through. Within days of Kavanaugh's swearing in, Trump had already put forth 13 more nominations to federal district and appeals courts.

At the high court, Kavanaugh’s appointment will likely move the court to the right for decades to come, as conservatives see opportunities to press cases before the justices. The backlash, too, could be severe: liberals who opposed Kavanaugh’s nomination could continue to protest his appointment to the court, sprouting new opposition groups.

We look back at key moments in the bitter confirmation fight that ended in Kavanaugh becoming the high court's newest justice.

Executive Power

Democratic opposition to Kavanaugh formed early in his nomination, in part because of Trump’s promises as a presidential candidate to appoint justices who would overturn Roe v. Wade. But Kavanaugh’s views on another topic—executive power—fueled even deeper liberal suspicion after a 2009 law review article of his surfaced.

In that piece, Kavanaugh expressed concerns about how the criminal investigation and prosecution of a president could crimp the presidency. Democratic senators used those words as a cudgel against his nomination, raising concerns that Trump picked Kavanaugh because the president wanted a justice who would rule in his favor if matters related to the special counsel’s Russia investigation reached the Supreme Court.

Whether the nominee would help Trump circumvent the Russia investigation became a key focus of Kavanaugh’s confirmation hearings, with Kavanaugh declining to promise to recuse himself from any future cases involving the probe.

Ford’s Accusation

It was, however, a California professor’s accusation of sexual assault that nearly derailed Kavanaugh’s nomination. Dr. Christine Blasey Ford captured the country’s attention when she, in an article in The Washington Post and in historic public testimony, accused Kavanaugh of sexually assaulting her decades ago when they were both in high school.

Within moments of the Post publishing Ford’s account, it became a national conversation and the saga consumed Washington, with lawyers diving into the fight. Beth Wilkinson of Wilkinson Walsh + Eskovitz, who’s counted the National Football League among her clients, stepped in for Kavanaugh. Debra Katz, a well-known civil rights lawyer, teamed up with veteran prosecutor Michael Bromwich to represent Ford pro bono. Individuals named in Ford’s recollection of the alleged incident turned to other elite trial lawyers, including Cozen O’Connor’s Biz Van Gelder and Kobre & Kim’s Eric Bruce.

In a separate allegation, Deborah Ramirez, a former undergrad classmate of Kavanaugh at Yale University, accused Kavanaugh of exposing himself to her at a dormitory party—adding fuel to the concerns of sexual misconduct.

Kavanaugh’s Unleashing

Drama peaked during Kavanaugh’s fiery testimony before the judiciary committee, where he denied Ford’s allegations in a polemic that fueled new concerns about his judicial temperament. In prepared remarks, he criticized liberal groups opposing his nomination and called the “circus” surrounding his confirmation “revenge on behalf of the Clintons.” Kavanaugh had worked on Ken Starr’s independent counsel probe involving the Clintons in the 90s.

It raised questions of how justices, reluctant to be seen as a partisan body, might receive those comments—and how Kavanaugh as a justice could fairly consider cases that involve liberal groups.

In a separate exchange, when U.S. Sen. Amy Klobuchar, D-Minnesota, asked Kavanaugh if he had ever drank to the point of blacking out, Kavanaugh fired back: “Have you?” In the lead-up to that exchange, Klobuchar had spoken of her father, a lifelong alcoholic.

Kavanaugh later apologized for the misfire, chalking it up to stress. Shortly afterward, Kavanaugh also penned an op-ed in the conservative editorial pages of The Wall Street Journal, acknowledging his heated rhetoric and attempting to recast himself as an independent, impartial judge. But for some, that bell could not be unrung. Over 2,400 law professors signed a letter opposing Kavanaugh’s confirmation, citing the nominee’s display at the hearing.

Crossing the Finish Line

One moment that captured the drama on Capitol Hill: Arizona Republican Sen. Jeff Flake’s intervention to reopen the FBI’s background probe into Kavanaugh in response to the sexual misconduct allegations. For days, Democrats had called for the bureau to investigate the women’s claims, but Republicans in the White House and Senate resisted.

The Senate Judiciary Committee approved Kavanaugh’s nomination the day after he and Ford testified about Ford’s allegations. But in joining the majority, Flake said his vote was contingent on the FBI reopening a limited background check on Kavanaugh—a move that forced judiciary panel chairman Sen. Chuck Grassley, R-Iowa, and Trump to act.

Trump directed the FBI to reopen an inquiry on Sep. 28, "limited in scope." The probe, which Ford’s attorneys and Democrats said was incomplete after it closed days later, gave Republicans confidence—and opponents argue, cover—to carry Kavanaugh’s nomination over the finish line.

Kavanaugh in his first days as a justice showed an active style from the bench. He and his new seatmate, Justice Elena Kagan, chatted and laughed together. Time will tell if the acrimony of Kavanaugh's confirmation battle colors his tenure on the court in the days and years to come.