V. Kuepers

On Saturday the 6th of October Brett Kavanaugh has been appointed to the US Supreme Court after an onerous procedure. Just before his official appointment, three women came forward to publicly accuse Kavanaugh of sexual assault. Therefore, his placement as Chief Justice in the highest court of the United States led to strong opposition by the nation and its citizens. How is Kavanaugh appointed and what is at stake for America?


The political character of the US Supreme Court

The Supreme Court is the highest court of the US and therefore serves as the final arbiter of US law.[1] The most contentious cases are decided in the nine-member Supreme Court, such as abortion, gay rights and gun control. Accordingly, the Court has a profound impact on American society. When a Chief Justice retires, a new judge takes his seat in the court. The president plays a very important role in this procedure, as he has the power to nominate a new judge.[2] After being nominated, a judge is heard by the Senate Judiciary Committee, followed by an election. Afterwards, confirmation by the Senate is required. The position of the president in this process is extremely powerful. As a judge serves for a lifetime, replacing a Chief Justice is one of the most consequential decisions of a president and makes it a highly politicized affair in the United States. [3] This essential requirement distinguishes the Supreme Court procedure from other countries, such as the United Kingdom.


Why is the appointment of Kavanaugh contentious?

There are several reasons why the appointment of Kavanaugh is so controversial. First of all, Justice Kavanaugh is replacing the retiring Justice Anthony Kennedy. Anthony Kennedy was also a Republican, but he often voted along with the more liberal democrats. Therefore, Kennedy was in a major position as he sided with liberal justices on issues like death penalty and gay rights.  On the contrary, Kavanaugh is an actual conservative judge. He has publicly expressed how he undermines Roe v. Wade, the landmark case which granted women a constitutional right to abortion, and he is known for his conservative views on religious freedom and gun rights.[4] Moreover, as Kavanaugh is only 53, he will serve for decades. The new appointment of Kavanaugh therefore gives the court a very influential shift to the right.

Not only Kavanaugh’s position is the reason why his appointment is contentious. After his nomination, three women came forward to publicly accuse him of sexual misconduct in high school and college.[5] The women all claim to be victims of sexual assault in which Kavanaugh showed ‘abuse and physically aggressive behavior.’[6] One of the potential victims, Christine Blasey Ford, had been questioned in the hearing of the Judiciary Committee, where Kavanaugh also expressed his innocence. The accusations against Kavanaugh leave question marks on why he eventually ended up in the Supreme Court. The FBI report contained no incriminating information, but is it possible to even prove an assault of 30 years ago, within a week?

Not only the accusations, but also Kavanaugh’s attitude during hearing is striking.  His voice was near shouting and he expressed his anger by calling the accusations ‘a calculated and orchestrated political hit’ and moreover stated that it was ‘revenge on behalf of the Clintons’.[7] A lot of Americans were devastated by these statements from man who is going to become of the most influential justices, in the highest judicial organ of the United States, an organ which has to find justice.


What now?

Kavanaugh will have, as conservative, prominent and young Chief Justice of the Supreme Court, huge influence on the most important issues of justice. The Court is in its most conservative position since 1937.[8] The new majority will therefore shift the law to the right on the contested issues, as already mentioned. The latest ambiguous developments and the unstable situation of politics within the United States, might lead more people to vote in November when the congress elections will take place. Whatever happens, Kavanaugh will serve as Trump’s stamp on the American society: a conservative judge ruling for the coming decades.




[1] Anthony Zurcher, ‘Brett Kavanaugh confirmation: Victory for Trump in Supreme Court battle’ (BBC, October 2018) <https://www.bbc.com/news/world-us-canada-45774174 >

[2] US Constitution article 2

[3] ‘Why US top court is so much more political than UK’s’ (BBC, October 2018) <https://www.bbc.com/news/world-us-canada-45632035>

[4] Clare Furan and Joan Biscuit, ‘Where Brett Kavanaugh stands on key issues’ (CNN, October 2018) <https://edition.cnn.com/2018/07/09/politics/kavanaugh-on-the-issues/index.html>

[5] Ellen Cranley, ‘How ‘the Forrest gump of republican politics’ Brett Kavanaugh became the Supreme Court’s most embattled justice in decades, after controversy over sexual misconduct allegations’ (Business Insider, October 2018) <https://www.businessinsider.nl/brett-kavanaugh-bio-photos-trump-supreme-court-pick-2018-7/?international=true&r=US>

[6] Ibid.

[7] Ibid.

[8] Adam Liptak, ‘Confirming Kavanaugh: A triumph for Conservatives, but a Blow to the Court’s Image’ (New York Times, October 2018) < https://www.nytimes.com/2018/10/06/us/politics/conservative-supreme-court-kavanaugh.html>