Half of Senate Confirms Kavanaugh to Supreme Court, 50-48; Controversy Over Kavanaugh and Abortion, Blasey Ford

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Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, on Oct. 6, 2018, was confirmed to a seat as Associate Justice on the U.S. Supreme Court by a Senate vote of 50-48.

One Senator voting “present,” indicating that, while she would have voted “no,” she was pairing her vote, presumably as a courtesy, was pairing her vote with another Senator who was absent for his daughter’s wedding.



There was recurring bedlam from the Senate gallery, with Vice President Mike Pence repeatedly instructing the Sergeant at Arms to restore order.

So Kavanaugh was not actually confirmed by a majority of the Senate itself, but merely a slight majority of those Senators present. Had one vote changed to the negative, Pence could have broken the tie in favor of confirmation. Apparently if all Senators had been present, the Senator attending the wedding, and the Senator pairing her vote with him, would have made the total 51-49, also resulting in confirmation.

Supreme Court Facade with Parkland and Blossoming Trees, adapted from image at supremecourt.govThe Kavanaugh nomination drew controversy on multiple counts. Some proponents of decriminalized abortion suggested that Kavanaugh might become the deciding vote on the Court to scale back or reverse past decisions blocking prosecutions for abortion, while others suggested the Kavanaugh would actually uphold abortion.



The author of this article repeatedly raised concerns about Kavanaugh’s association with outgoing Justice Anthony Kennedy, and Kavanaugh’s ongoing publicly professed admiration for Kennedy.

Kennedy is one of the main architects of judicially spawned abortion in the United States, as well as a major architect of judicially fostered homosexual jurisprudence. Kennedy was the deciding vote and co-author of the Planned Parenthood of Pennsylvania v. Casey decision in 1992 that carried forward decriminalized abortion when it essentially upheld but modified Roe v. Wade. Kavanaugh clerked for Kennedy within a year or so of that decision.

Kennedy would later vote, and co-author, Supreme Court jurisprudence promoting the idea of sodomy, homosexuality and homosexual “marriage” as Constitutional rights.

Kavanaugh updated and reaffirmed his association with Kennedy during Kavanaugh’s nomination process by declaring Kennedy to be a champion of liberty, leaving a legacy of liberty. As pointed out by the author, that position defies the notion that the first liberty is the right of the innocent not to be deprived of life, as well as the concept that a government’s legitimacy is grounded up its defense of human life, one of the tenets of other basic principles such as justice and peaceful social order.



Meanwhile, however excruciating or involved the confirmation and investigative process might have become, there appeared to be no definitive resolution of questions raised about past alcohol-related criminal sexual wrongdoing by Kavanaugh, alleged by psychology professor Dr. Christine Blasey Ford, or other issues raised by Ford or others. One might wonder why, and how, a process that became so intrusive and so involved did not manage to get to the bottom of what actually did, or did not, happen.

In the past, a scholar of evidence raised the point that, regardless of a generalized American concept of “innocent until proven guilty,” in law, itself, there are different standards of proof for different frameworks and different purposes. For example, a criminal proceeding aimed at depriving life or liberty requires proof beyond a reasonable doubt, while a civil proceeding considering financial compensation only requires proof by a preponderance of the evidence. Even within a civil proceeding, there are different levels of proof for such steps as summary judgment, dismissal, the awarding of legal fees against a frivolous claim, and so forth.

In the case of a confirmation hearing, the issue is not whether to deprive the nominee of life or liberty, or of extracting money damages. The issue is whether to abstain from providing a position of great power. So, even though the subject matter relates to allegations of criminality and allegations of tortious misconduct, the standard of proof, and the willingness to remain neutral by not moving forward with confirmation, presumably could be different than the standards of proof for a criminal trial or civil proceeding.