Commentary: Five Questions on Brett Kavanaugh and the battle for the Supreme Court

Judge Brett Kavanaugh’s confirmation to the United States Supreme Court is in question due to allegations of sexual assault made by Dr. Christine Blasey Ford, a psychology professor and high school acquaintance of Kavanaugh’s. On Friday, Senate Republicans agreed to delay the vote by one week in order to make time for an FBI investigation into Ford’s claims.  

Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill in Washington, U.S., September 27, 2018. Win McNamee/Pool via REUTERS

Amy Steigerwalt, a Georgia State University political science professor whose research focuses on the federal judicial selection process, as well as the influences on courts’ operations and decision-making, spoke with Reuters’ Helen Coster about the politicization of the confirmation process, why the Supreme Court isn’t as partisan as it’s made out to be, and why women who seem aggressive or combative are still penalized.   

REUTERS: John Roberts once compared the role of judges to that of umpires – applying the rules, not making them. Yet the Court is often portrayed as partisan. Is that an accurate description?

The reality is that the Court is unanimous – seriously, all of the justices agree! –  about 50 percent of the time. As colleagues and I detail in our book, The Puzzle of Unanimity, there's quite a lot of cases where the rules and law are clear and all of the available evidence points towards a single, legal answer. In those cases, which we argue reflect a high level of legal certainty as to the "correct" legal answer, unanimity and consensus are much more likely.

Where we start to see divisions and partisanship/ideology appearing is in those cases where the law is simply less clear – where the statute or constitutional provision is ambiguous, or precedent is confusing, or where a new question has arisen due to changes in society, etc.

So, there will always be “political” decision-making, and courts will always make policy. What can be done is to ensure that those who sit on the Court are willing to keep an open mind – that they do not suggest that certain parties to cases should be favored, or certain interest groups or certain arguments.

REUTERS: What do you make of the politicization of the confirmation process itself, and what do you expect to be the fall-out from the past few weeks?

What we’ve seen recently is a much more hyper-partisan process, and one where the underlying procedures that help ensure a fair (even if political) process have truly been abandoned. And that started before last week: there’s never been a hearing for a Supreme Court nominee before the National Archives have finished collecting their records, there’s never been an instance where a Supreme Court nominee was denied even a hearing before the Judiciary Committee, or where documents were blocked from senators without a bipartisan process, and so on.

The Judiciary Committee was long known for its bipartisan nature – there was little enmity on it, senators served together well, and a lot of the squabbles were really happening on the floor, rather than in the Committee. The past few years have changed that, and the hearings this past week were quite surprising in terms of the open animosity members were expressing for other members on the Committee. I think what will be difficult is returning to past procedures. That said, I also think the developments Friday afternoon of delaying for a week for an FBI investigation were a (small) step toward trying to restore that sense of collective action.

REUTERS: Do you think the partisanship Kavanaugh displayed at Thursday’s hearing would have been considered disqualifying in previous eras?

Yes. As an academic, I’m not normally that blunt, but what I was struck most by was the blatantly partisan tone of his opening testimony. He did not simply deny the accusations, or even express concern about being the target of such accusations, but rather launched a very direct attack against the Democratic members of the Committee…. He mentioned “Democrats” or “the left” eleven times in his opening testimony; for comparison, Clarence Thomas did so zero times in his hearings.

In the past few years, members of the House and Senate have brought cases to the Supreme Court, as well as many of the people and groups Kavanaugh was pointing to. What happens if one of these individuals or groups brings a case before him? Is the retribution that he hints at, when he notes that “as we all know in the United States political system of the early 2000s, what goes around comes around,” going to be on display? That is a really unsettling thought, and one that is usually immediately disqualifying for someone nominated to any level of the federal judiciary.

REUTERS: After the Senate confirmed Clarence Thomas by the narrowest margin ever, female voters helped usher in the “Year of the Woman.” Kavanaugh’s confirmation hearing is the first of the #MeToo era. Can you frame it in that context?

The Clarence Thomas hearings were a fairly stark reminder of the paucity of women in the Senate – at the time, not a single member of the Judiciary Committee was female, and only two women served in the Senate. (There were also no members of color.) For many people the hearings also reflected the status of women, not only in the political arena, but also society: the sight of 14 white men questioning a woman, and a woman of color, about experiences that they would simply never be on the receiving end of and thus had no real way to process or understand.

The result of the 1992 “Year of the Woman” was to triple the number of female senators from two to six, which led to the first woman ever to serve on the Judiciary Committee, Dianne Feinstein, the now-ranking member. This year’s elections are on track to increase the number of women in the House and Senate once again.

In the context of #MeToo, one thing that is notable is the number of female candidates, and currently-serving legislators, who are willing to note their own stories of harassment and assault. What came across at these hearings was the realization that there has never, in over 150-plus years, been a female Republican on the Judiciary Committee (nor, a member of color). And, that in part led the Republican members to hire an outside, female counsel to question Ford. Thus, once again, people saw the visual of a panel of men casting judgment on a female and, visually, doing so silently in judgment.

What's also notable is that we saw members of the media – female and male – as well as private citizens recounting their own stories. And we've seen quite a lot of public discussion that's not simply an airing of what's happened to women (and men), but also of #WhyIDidntReport, with heart-wrenching stories of why people did not report sexual assault or, perhaps worse, how they were shamed or disbelieved or ostracized or ignored when they did.

The Congress beginning in January 2019 will have more female members than ever before. I would not be surprised to finally see a female Republican seated on the Judiciary Committee, nor more attention paid to the issues #MeToo, #WhyIDidntReport, and the Kavanaugh hearings have brought out.

REUTERS: You have written extensively about the unique challenges facing female politicians. Many people have observed that if a woman were to carry herself the way Kavanaugh did – emotional, combative – she would have lost credibility. What do you think?

The research in this area is fairly stark – women are penalized much more than men for being seen as aggressive or combative. Also notable was not simply the lack of combativeness on the part of Ford, but also the degree to which she went out of her way to be helpful and also to apologize throughout the hearing for when she could not remember something or misunderstood a question.

As we detail in Gendered Vulnerability, female candidates and elected officials continue to contend with very gendered presentations in the media – more discussions of their clothes or their demeanor – as well as with gendered perceptions held by voters and colleagues alike. The way in which Kavanaugh responded to questions by Senator Amy Klobuchar was noted by many, in part because it appeared to suggest she was not worthy of the respect reserved for her male counterparts. That's something women in politics, and throughout society, encounter often.

(This Q&A has been edited for space.)

About the Author

Helen Coster is a Senior Editor at Reuters and a former Senior Writer at Forbes magazine. @hcoster

The views expressed in this article are not those of Reuters News.