The United States Senate is charged with advice and consent on the Brett Kavanaugh nomination to the U.S. Supreme Court. But what does advice and consent mean? Article II, Section 2 of the Constitution governs the Senate's role in the process. The president "shall nominate, and by and with the advice and consent of the Senate, appoint ambassadors, and other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States whose Appointments are not otherwise provided for, and which shall be established by Law..."
The Senate does not need to vote on the nomination, providing that the advice and consent provision allows a vote, but does not require one. President Barack Obama forwarded the nomination of Judge Merrick Garland to the Senate, but the Republican Senate declined to take up the nomination. Judge Miguel Estrada, nominated by President George W. Bush to the U.S. Court of Appeals in D.C., finally withdrew his nomination after a two-year delay. The Senate chose not to vote on him, finding him unqualified.
The controversial Kavanaugh nomination was opposed by Senate Democrats, perhaps still angry at President Donald Trump for making it, perhaps still angry that Senate Republicans for refusing to consider Judge Garland, perhaps concerned that last-minute sexual impropriety allegations made Kavanaugh unsuitable for the Supreme Court. The recent Senate vote revealed three swing votes (two Republicans and one Democratic), assuring the victory for Kavanaugh, despite many groups, mostly women, expressing their opposition to Kavanaugh and in support of Dr. Christine Blasey Ford's testimony. The assertions made by Dr. Ford were explored by the Senate Judiciary Committee, by allowing Senators to cross-examine her to reveal her credibility and gather the truth of her assertions from 36 years ago.
Likewise, conservative Judge Kavanaugh was given the opportunity before the committee to deny the allegations. He did so in impassioned remarks, occasionally becoming testy with Democratic senators as he issued his denials, a condition for which he publicly apologized in an article published in a national newspaper. He justified his remarks as a defense to last-minute scurrilous assertions of youthful drinking and sexual escapades leveled at his nomination by his confirmation opponents.
In light of Kavanaugh's experience, the question must be asked, "How can the United States attract the best and brightest citizens to public service if they're subjected to unprovable allegations raised in the final hours of a nominee's consideration for high office and which allegedly occurred more than 35 years ago?" Why do most all Senate Democrats stand together to vote down someone who has endured seven FBI background checks, been nominated and served in high public office and as a member of a high American court? Surely there are a handful of Democratic senators who would vote to confirm a decent man with a fine family who has lived an exemplary life for decades, Senators who would put America's best interest ahead of partisan politics.
While Judiciary Committee Senators were respectful of Dr. Ford's testimony, it contained fatal gaps and was uncorroborated (though sexual predator victims often believe their renditions). Judge Kavanaugh was equally adamant about Dr. Ford's mistaken identity. It was a classic case of unprovable allegations raised at the last minute in a blatant political attempt to derail a controversial judicial nomination by a controversial president with less than a 50 percent national approval rating.
Nevertheless, partisanship should not prevail. Supreme Court nominees should be supportable by senators from both major political parties. Thomas Jefferson, who contributed to Article II, Section 2, of the Constitution, yielded to those who wanted a diffuse sense of authority by having the Senate involved in the president's nomination authority. President George Washington, who generally eschewed concentration of power in any one branch of government, ruled the day when the Constitution was being debated. Article II, Section 2 was duly adopted by the founders, and it has remained unamended since the Constitution was adopted and ratified by the states.
So where does that leave nominees appointed or elected to high office? Since political elections and nominations are important to our country's perpetuation, last-minute allegations of sexual or moral impropriety should never be used as political weapons, lest good, qualified citizens will repel from public service. All of America will suffer, and more polarization will exist, a condition unintended by the founders.
The appropriate question for all nominees will then be, "How do I get my reputation back?" ♦
