Volume 19

Rejecting the Confirmation Process: Modern Standards for Investigating Nominees to the Supreme Court

by Nathan A. Williams

Elimination of the filibuster for nominations to the Supreme Court by Senate Majority Leader Mitch McConnell in 2017 upended the procedural calculus used by modern Presidents. No longer did endogenous rules encourage the selection of a nominee capable of attracting broad support in the upper house as long as the president’s party controlled the majority in the Senate at the same time. In mid-2018, this led to the nomination of Brett Kavanaugh, the first appointment following the rule change, whose breadth of experience in public life threatened discovery of unexplored vulnerabilities for Committee investigators. Ultimately, his nomination forced the most expansive investigation of any nominee to the Supreme Court in history. His background file exceeded one million pages of documents detailing his tenure in roles across the executive and judicial branches. Yet his confirmation almost met defeat from an allegation undisclosed to investigators until the eleventh hour.

In reality, Brett Kavanaugh’s nomination presented unique challenges to the Judiciary Committee from the outset. Not only did his nomination attract early opposition from senators in the minority—in part because his confirmation meant shifting the ideological direction of the Supreme Court—but the Committee had never before conducted a background investigation comparable in scope. Both because of the depth required to review Kavanaugh’s voluminous record and in spite of it, events that unfolded throughout the Judiciary Committee’s consideration of his nomination underscored the importance of process in equal measure as it exposed the need to standardize it. In short, the modern procedural landscape in the Senate requires reforming the processes for considering nominations to the Nation’s highest Court to protect the integrity of the federal judiciary.

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