Section 2 of the Constitution, also known as the Appointments Clause, states, “[the President] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper…” Looking at this statement, or current President is allowed to nominate Brett Kavanaugh to the Supreme Court. However, the sexual misconduct allegations against Brett Kavanaugh have led to the debate over is Kavanaugh considered an inferior officer. In this paper, I will argue that Brett Kavanaugh is not an inferior officer and that there is no reason that he shouldn’t have been nominated to the supreme court.
In order to see how Brett Kavanaugh is not an inferior officer, we must compare him to other supreme court justices that have sparked controversy throughout history. Supreme Court Justice Hugo Black was appointed by President Franklin D. Roosevelt on August 12, 1937. Prior to his nomination, Black was a senator when Congress passed legislation that increased benefits of supreme court retirees. The legislation also prohibited those currently on Congress from being appointed to a position affected by the legislation such as a supreme court justice. Despite the legislation, Hugo Black was confirmed by the Senate in a vote of 63-16. Before he sat on the bench as a supreme court justice, it was discovered that Hugo Black was part of the Ku Klux Klan. When an explanation was demanded, Black claimed that he joined solely for political reasons when he was running for senator in Alabama. According to Thad Morgan, “Black calculated it was worth appealing to the growing KKK crusade” (Morgan). Morgan then describes how knowledge of Black’s KKK membership could sink any chances of him getting elected to the Senate (Morgan). Although his plan did secure him a seat on the Senate, his former KKK membership did come back to haunt him (Morgan). Considering that being a member of the KKK could severely affect decision making in the court, it is understandable that people would be concerned about having Hugo Black be a part of the supreme court. Regardless, Hugo Black served as a supreme court justice until his retirement in 1971 where, in his time as a justice, he supported desegregation in the Brown v. Board of Education case. Although there is proof that he was part of the KKK, there is no proof that he acted on that membership.
Justice Clarence Thomas was nominated in 1991 after the retirement of Justice Thurgood Marshall, the first African American to sit on the Supreme Court, retired after 34 years. The controversy around Justice Thomas is very similar to the current controversy around Brett Kavanaugh. Anita Hill, a former aide of Justice Thomas, accused him of sexual assault. History.com writes, “Hill… alleged that the Supreme Court nominee had repeatedly made sexually offensive comments to her in an apparent campaign of seduction” (History.com editors). History.com also writes, “Thomas… denied the charges, and some witnesses called on his behalf cast doubt on Hill’s character and mental stability” (History.com editors). Justice Thomas was confirmed on October 15, 1991.
It is important to learn about these past nominees because they can be used as a reference for the future. In the case of Hugo Black, we learn that just because you are part of an organization, it doesn’t mean that you must agree with their ideas as Justice Black supported desegregation of schools. In the case of Clarence Thomas, the two situations are almost identical with their supreme court positions being threatened by sexual misconduct allegations. Both cases prompted outrage as feminist movements with 1992 being considered the “year of the woman” with a large number of women elected as senators and the #MeToo movement today in 2018 with a record number of women running for the House and Senate (Bouchard, Taylor).
When determining whether Kavanaugh is fit to be a supreme court justice, we must determine if he is innocent or guilty of the allegations against him. We know that Dr. Christine Blasey Ford raised allegations against Brett Kavanaugh for a rape that supposedly happened over 30 years ago. Ford wrote in a letter, “I was pushed into a bedroom and was locked in the room and pushed onto a bed. Two boys were in the room. Brett laid on top of me and tried to remove my clothes while groping me. He held me down and put his hand on my mouth to stop me from screaming for help” (Ford). Kavanaugh, although claiming that he was not a partier and not a drinker. However, his classmates in Yale claim that Kavanaugh was known for getting incoherently drunk (Harwood). Senator Flake requested an FBI investigation on Kavanaugh that was limited to a week of investigating (Smith). Republican senators claim that the FBI report does not reveal any new information while Democratic Senators claim that a lot of things were left out of the investigation. Based off of this evidence presented to us, I believe that Kavanaugh is a worthy supreme court Nominee.
Although there are allegations of rape raised against Kavanaugh, the entire case is based on hearsay. Rachel Mitchell of the Nominations Investigative Counsel writes, “: A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard” (Mitchell). In the U.S. legal system, under the presumption of innocence, one is innocent until proven guilty and, as of now, there is not enough evidence to prove someone guilty. Senator reports to CBS reporters Kathryn Watson, Alan He, John Nolen, Emily Tillett, and Grace Segers show that the FBI report does not connect Kavanaugh to Dr. Ford’s rape as (Watson, He, Nolen, Tillett, Segers).
In an article by Ephrat Livni, she argues that “innocent until proven guilty” does not apply to job interviews. She writes, “Kavanaugh has not been accused of a crime by a prosecuting body. His liberty isn’t at stake. He’s just a guy who’s up for a job. When you’re applying for a job, an employer doesn’t have to prove you’re guilty beyond a reasonable doubt to discard you from the running” (Livni). While it is true that this is essentially a job interview and that Kavanaugh’s “employer” can just dismiss him as unqualified, I believe that if that deciding factor is something that will affect you for the rest of your life, like being considered a rapist, they have to prove that you actually were a rapist. Another argument that I have personally heard from people around me is that watching a rapist go to the highest court of justice in America will discourage other rape victims from coming forward. While it certainly would be true in the case of someone who is confirmed a rapist rising to power, Kavanaugh has only been accused of being a rapist and the evidence points to the rape not actually happening. In this case, it would actually be discouraging weaponization of fake rape allegations. Another argument made by John Harwood of CNBC claims that Brett Kavanaugh is hard to believe (Harwood). Kavanaugh claims that he was focused on academics and athletics but Harwood writes, “Kavanaugh joined a fraternity whose members waved a flag made of women’s panties for a photo in the campus newspaper. He belonged to an all-male secret society known for drinking and its crude sexual nickname” (Harwood) to suggest that academics and athletics was not Kavanaugh’s foci. Just because you’re a partier and join a frat, it doesn’t mean that you aren’t focused on academics and athletics. It is very possible to be in a frat, do well in school, and be an athlete. Parties didn’t have to be a focus for Kavanaugh but an outlet for the stress from focusing on athletics and academics all the time.
Although Kavanaugh is definitely a controversial candidate for the title of supreme court justice, there is no reason that he shouldn’t be a supreme court justice. Although there is talk about him raping Christine Blasey ford over 30 years ago, there is no proof linking him to those crimes. Even with his past of a fraternity brother, that does not necessarily mean that he is an unsuitable candidate and with him being confirmed, all we can hope is that he doesn’t mess it up.