On October 6, 2018, the U.S. Senate voted 50-48 to confirm Brett Kavanaugh to the Supreme Court despite credible, powerful allegations of sexual assault. The vote came on the heels of a partisan display by Kavanaugh during his confirmation hearings in which he put forward conspiracy theories that echoed his long career in conservative politics. His appearance drew more than 80 serious ethics complaints that were dismissed only because lower court judges do not have the legal authority to discipline Supreme Court justices. Recently, new information has come to light strongly indicating that little to no meaningful investigation by the Senate or the FBI into Kavanaugh’s past occurred after the allegations were made—underscoring the troubling nature of his nomination—despite claims to the contrary from the administration and his supporters in the Senate.
But Kavanaugh is not an anomaly; rather, he embodies major issues with regard to conservative court packing and a lack of ethical oversight within the entire judiciary—issues that necessitate reforms. So, while Kavanaugh and his confirmation process should be the focus of robust oversight, policymakers must also direct their efforts to fixing accountability issues within the federal judiciary as a whole that damage the institution’s legitimacy.
Conservative court packing
For decades, conservatives have worked in concert with wealthy donors to develop a pipeline of ideologically conservative jurists prepared to assert their ideology and life experiences over the law. In recent years, the impact of this work has multiplied thanks to Senate Majority Leader Mitch McConnell’s (R-KY) subversion of long-held procedures in order to pack the courts with ideologically conservative judges.
During the final years of Barack Obama’s presidency, McConnell refused to hold a vote for Obama’s Supreme Court nominee, Merrick Garland, following Justice Antonin Scalia’s death and held open an unprecedented 110 judicial seats in hopes that a conservative would be elected president. All told, he ensured that Obama was only able to confirm two appellate judges in his final two years as president.
Once a conservative moved into the White House, McConnell again changed the rules to make it easier to appoint judges. He curtailed the ability of individual senators to directly weigh in on judicial nominees from their respective states and allowed Supreme Court nominees to be confirmed by a simple majority vote. As a result, under the administration of President Donald Trump, conservatives have been able to pull from their long-developed pipeline and fill federal judicial vacancies at all levels, moving the courts aggressively to the right. The result: Trump was able to put 30 appellate judges on the bench in his first two years, appointing more than 150 total judges to date.
Taken together, the impact of these actions on the judiciary is hard to overstate: At this point in his tenure, Trump far outpaces every modern president in terms of appellate appointments at the same points in their presidencies.*
Brett Kavanaugh’s confirmation to the Supreme Court, then, can be seen as the natural result of these efforts. Both before and during his nomination, he proved himself committed to engaging in partisan behavior. Before being appointed to the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh had a long career in conservative politics. As a young lawyer, he joined Kenneth Starr’s Office of the Independent Counsel investigating then-President Bill Clinton for certain real estate investments, which later dramatically broadened in scope to include the relationship between Clinton and Monica Lewinsky. While in that position, Kavanaugh advocated for the investigation to have a sexually graphic tone, including questions specifically discussing Lewinsky’s private anatomy. Later, he would hold senior posts in President George W. Bush’s White House, where, in addition to other troubling actions, he worked to promote ideologically conservative judges, reportedly emphasizing the “ideological stakes” involved in their nominations. According to an analysis by law professors at the University of Virginia, Kavanaugh did not abandon his political leanings once he became a judge. In fact, he held the most conservative voting record among his peers in the D.C. Circuit in nearly every policy area.
When confronted with allegations of serious sexual assault during his confirmation hearings, Kavanaugh invoked partisan rhetoric, claiming criticisms of him were rooted in his previous work on the Clinton impeachment. The vote confirming him—a narrow majority that would have kept him off the bench if not for McConnell’s changes to the Supreme Court nomination process—was the closest in recent history.
Lack of ethical oversight
Brett Kavanaugh’s nomination to the Supreme Court also points to a greater pattern of unaccountability that exists within the federal judiciary. Importantly, while there is currently a code of conduct for most federal judges, it does not apply to the Supreme Court. Moreover, the code is self-policed and overseen by the Judicial Conference of the United States, which is made up of federal judges and the chief justice of the Supreme Court. These poorly enforced and vague ethical guidelines for federal judges have contributed to scandals within the courts, such as sexual harassment and fraudulent tax schemes. Judges, however, are able to avoid repercussions from ethical violations by retiring from their position. Doing so effectively ends any investigation into their conduct while also allowing them, in most cases, to collect a pension of more than $200,000 per year.
This system is even more troubling in light of the elite, closed nature of the judiciary. Of the 114 total Supreme Court justices in U.S. history, all but six have been white men. There is similar uniformity on the Supreme Court in terms of education: 8 in 9 current Supreme Court justices graduated from either Yale or Harvard Law School. This tribal nature of the judiciary filters down through the lower courts and even clerks fresh out of law school, which raises concerns as to whether judges with so much in common and shared professional networks are best positioned to oversee investigations into their peers’ behavior.
Kavanaugh demonstrates another way judges can avoid repercussions: being promoted to the Supreme Court. As a result of Kavanaugh’s questionable statements under oath and partisan outbursts during his confirmation hearings—all of which appear to be in violation of the Code of Conduct for United States Judges—83 ethics complaints were filed against him. After Kavanaugh’s confirmation to the Supreme Court, however, these complaints were ultimately dismissed, as lower courts do not have the authority to investigate complaints against Supreme Court justices. Unfortunately, in a more recent example, revelations that Kavanaugh reportedly asked journalists writing a book about him to lie about whether he would agree to an interview serve as yet another example of why his credibility should have been fully investigated.
The supposed rigor of the confirmation process in the Senate for Supreme Court nominees could be a possible check on this lack of oversight. Unfortunately, the majority party in the Senate at the time of Kavanaugh’s confirmation is reported to have failed in its duty to fully investigate Kavanaugh’s credibility. In fact, despite increasing ethics concerns, McConnell rushed Kavanaugh’s confirmation to the floor and ended any chance of thorough vetting and review.
Kavanaugh’s confirmation to the Supreme Court shined a bright light on major challenges facing the judiciary. A variety of reforms have been advanced to address these problems, including changing the structure of the Supreme Court, instituting term limits for all federal judges, and establishing independent commissions to recommend federal judicial nominees. Similarly, in regard to ethics reform, proposals have been put forward to expand existing ethics requirements and create a panel responsible for enforcing those requirements.
Given the current state of the judiciary, these types of proposals warrant careful consideration. Brett Kavanaugh’s confirmation to the Supreme Court is a dramatic example of why policymakers must take action to restore legitimacy to the federal judiciary.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress. Abbey Meller is the organizing associate for Democracy and Government at the Center.
*Authors’ note: As of September 25, 2019, President Trump has appointed 43 appellate Article III judges. At the same point in their presidencies, Presidents Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, Ronald Reagan, and Jimmy Carter had appointed 20, 28, 26, 28, 22, and 34 appellate judges, respectively. These statistics are pulled from the Federal Judicial Center’s “Biographical Directory of Article III Federal Judges, 1789-present.”