In the culmination of a nomination process that divided the nation, Brett Kavanaugh was sworn in as a Supreme Court Justice on Saturday night. As USA Today reports, the final Senate vote was 50-48, with Joe Manchin the lone Democrat voting in favor of Kavanaugh’s appointment and Lisa Murkowski the lone Republican voting against. Kavanaugh was sworn in shortly after the vote by Chief Justice John Roberts and retiring Justice Anthony Kennedy in a private ceremony. Kavanaugh once served as a law clerk for Justice Kennedy, as did Justice Neil Gorsuch. In another overlap, Gorsuch and Kavanaugh each attended high school at Georgetown Preparatory School.
FBI Investigation. As the nation well knows, Dr. Christine Blasey Ford’s allegation that Justice Kavanaugh drunkenly attempted to rape her at a high school party was the focus of a Senate Judiciary Comittee hearing and, ultimately, an FBI investigation initiated at the behest of Senator Jeff Flake. The results of that investigation have largely remained secret, with only one copy of the full report being prepared and that copy made available only to senators. Judiciary Committee Chairman Chuck Grassley said that the investigation did not uncover evidence that corroborated Dr. Ford’s allegation that Kavanaugh, with the assistance of a friend, isolated and attacked her in a bedroom of mutual friend’s home. Grassley released an executive summary of the report to the public.
High Court Partisanship. It has been widely suggested that the battle over Kavanaugh’s nomination marks an unprecedented shift towards partisanship on the U.S. Supreme Court. Senator Susan Collins, who cast a crucial vote to confirm Kavanagh, remarked from the floor of the Senate that she hoped Kavanaugh would “work to lessen the divisions in the Supreme Court.” At a ceremonial swearing in on Monday, President Donald Trump apologized to Kavanaugh “on behalf of [the] nation” for his nomination ordeal. For his part, Kavanaugh, at the Judiciary Committee hearing, characterized Ford’s allegation as a “calculated and orchestrated political hit” meant as “revenge on behalf of the Clintons,” but later said at the ceremonial swearing in that he took the bench with “no bitterness” and expressed his view that the Court is not a partisan institution.
Standards of Proof. Though sometimes obscured in the national discussion of Ford’s allegation against Kavanaugh, the Judiciary Committee hearing was just that — a senate committee hearing and not a formal judicial proceeding. Free from the procedural confines of a true judicial proceeding, people announced various views of the evidence presented, the process due, and the applicable standard of proof. Senator Mitch McConnell borrowed from principles of criminal law, declaring that “[n]obody is supposed to be guilty until proven innocent in this country.” Senator Susan Collins said that Ford’s allegation did not meet a “more likely than not” standard and voted to confirm on that basis. President Donald Trump said that Kavanaugh had been “proven innocent.”
Rape Kit Funds. While the Kavanaugh nomination and confirmation was a dominant story this week, there was plenty of other news involving criminal law. North Carolina Attorney General Josh Stein announced that the state has received a $2 million federal grant to be used to reduce the rape kit backlog plaguing the State Crime Lab. The grant will facilitate the testing of about 1,400 kits; the total backlog in North Carolina is over 15,000 kits.
Officer Convicted. As the Chicago Tribune reports, former Chicago Police Officer Jason Van Dyke recently was convicted of second-degree murder for fatally shooting Laquan McDonald. Van Dyke and other officers encountered McDonald carrying a knife and Van Dyke testified that he thought it was necessary to shoot McDonald because of his threatening behavior. Dash cam video contradicted Van Dyke’s account of the events.
Cough Medicine Plea. As WRAL reports, Matthew James Phelps pleaded guilty last week to first-degree murder in the 2017 stabbing death of his wife, Lauren Hugelmaier Phelps. The case attracted national attention because Matthew Phelps told a 911 dispatcher that taking large doses of cough medicine may have caused him to kill his wife.
CLE Opportunity. As we’ve mentioned previously, the School of Government is offering a new CLE program that we think will interest blog readers. On November 16, 6.25 hours of CLE is on offer at the Back to School CLE @ SOG. We hope to see you there.