October 6, 2018 at 4:03 pm EST | by Chris Johnson
It’s official: Senate confirms Brett Kavanaugh to Supreme Court

Brett Kavanaugh refused to say he supports the Obergefell decision. (Blade photo by Michael Key)

The U.S. Senate voted on Saturday to confirm Brett Kavanaugh to the U.S. Supreme Court, bringing to an end a tumultuous confirmation process for President Trump’s judicial nominee.

With Vice President Mike Pence presiding over the chamber in case his constitutional duty to break tie votes was required, the Senate voted 50-48 to confirm Kavanaugh.

The Senate confirmed Kavanaugh despite multiple allegations the nominee committed sexual assault. Christine Blasey Ford testified before the Senate a teenaged Kavanaugh sexually assaulted her in 1982 when she was 15 years old. Kavanaugh also faced accusations of perjury based on his testimony, including his assertion the meaning of “Devil’s Triangle” and “boofed” in his high school yearbook entry weren’t sexually related terms.

Other critics said his response to the accusations in his testimony before the Senate, including an assertion it was a result of “revenge of the Clintons,” demonstrated a lack of judicial temperament and made him unfit for the Supreme Court.

The vote was largely along party lines, although Sen. Joe Manchin (D-W-Va.) broke with Democrats to vote in favor of nomination. Sen. Lisa Murkowski (R-Alaska) came out against Kavanaugh’s confirmation, but voted “present” on the confirmation vote in the spirit of comity because Sen. Steve Daines (R-Mont.) absent because he was attending his daughter’s wedding.

Sen. Susan Collins (R-Maine), a supporter of LGBT rights who was a champion of “Don’t Ask, Don’t Tell” and the Employment Non-Discrimination Act, was thought to be a potential “no” vote on Kavanaugh, but declared her support for the nominee Friday.

The margin was the narrowest ever in history for the confirmation of a justice to the Supreme Court, beating the 52-48 vote in 1991 to confirm U.S. Associate Justice Clarence Thomas.

Raj Shah, a White House spokesperson, said in a statement the Trump administration would waste no time in seating Kavanaugh and arrange his swearing-in the day of his confirmation vote.

“The White House applauds the Senate for confirming President Trump’s nominee Judge Brett Kavanaugh to the Supreme Court,” Shah said. “Later today, the President will sign his commission of appointment and he will be officially sworn in.”

According to the Associated Press, U.S. Chief Justice John Roberts and former U.S. Associate Justice Anthony Kennedy would swear in Kavanaugh to the Supreme Court.

Progressive and LGBT groups, who opposed Kavanaugh since he was nominated out of fears he’d rollback LGBT rights and overturn Roe v. Wade, were indignant over the Senate approving his nomination.

Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the confirmation was “a slap in the face to women and all sexual assault survivors.”

“It is also a blow to the legitimacy of the Supreme Court,” Minter said. “Kavanaugh’s belligerence and hyperpartisan attacks at last week’s hearing do not reflect the temperament or impartiality required for a lifetime appointment to our nation’s highest court.”

Kavanaugh now takes the seat on the Supreme Court formerly occupied by Kennedy, who was known as a moderate, dwing justice and wrote four major milestone decisions in favor of gay rights, including the 2015 ruling for marriage equality nationwide.

During his time as a judge on the U.S. Circuit Court of Appeals for the Federal Circuit, Kavanaugh wasn’t asked to deliver any rulings on LGBT rights. However, his inclusion on Trump’s list of potential Supreme Court nominees, chosen by the Federalist Society and the Heritage Foundation, cast doubt he would the interpret the law favorably for LGBT rights.

Stan Sloan, CEO of the Family Equality Council, articulated in a statement the concerns felt by LGBT rights supporters over Kavanaugh’s confirmation.

“Today, we recognize the deep disappointment and fear many Americans are feeling, and acknowledge the specific fears of the LGBTQ community as the Justice joining the Supreme Court has a record that indicates he would undercut our rights, uphold discrimination against our community, and allow President Trump’s anti-LGBTQ agenda to withstand judicial scrutiny,” Sloan said.

Many LGBT right supporters have raised concerns Kavanaugh will be the deciding vote reversing Kennedy’s landmark decisions on LGBT rights, including the decision for marriage equality nationwide. Kavanaugh’s responses on LGBT rights during his confirmation hearing left LGBT legal experts wholly unsatisfied.

The chances of reversing Obergefell three years after the court issued the decision may be slim, but marriage equality is but one issue Kavanaugh could face as a justice. Other LGBT-related cases that may come to Supreme Court with Kavanaugh on the bench including litigation challenging President Trump’s transgender military ban, whether federal civil laws against sex discrimination applies to LGBT people and whether “religious freedom” affords a right for individuals and businesses to discriminate against LGBT people.

Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement the confirmation was a “moral failure” on the part of the Senate.

“Justice Kavanaugh is a direct threat to the well-being of 2 million transgender people, and his confirmation is an insult to the millions of people who have survived sexual assault,” Keisling said. “Every time the Supreme Court strips more rights away, survivors will receive a painful reminder that decisions about their lives are being made by people who have been credibly accused of sexual assault.”

With Kavanaugh seated, many progressives are hoping outrage over the confirmation will contribute to the energy driving an expected “blue” wave at the polls in the upcoming congressional mid-term elections. However, new signs have indicated the Kavanaugh confirmation process has also generated a backlash among Republican voters, who are now telling pollsters they’re also energized.

Chad Griffin, president of the Human Rights Campaign, said in a statement the “harmful consequences of the Senate’s decision to support Brett Kavanaugh will last decades” and urged voters to make their objections heard at the polls.

“In the wake of this news, there is only one course of action,” Griffin said. “The millions of Americans who have fought a valiant struggle against this Trump-Pence nominee must make their voices heard in November and beyond by electing lawmakers who will stand up for our rights rather than sell us out.”

Kavanaugh may not be out of the woods even though he was confirmed to the Supreme Court. Rep. Jerrold Nadler (D-N.Y.), top Democrat on the House Judiciary Committee, has indicated a Democratic majority in the House would further investigate sexual assault and perjury allegations against Kavanaugh, which could result in impeachment proceedings.

Sarah Kate Ellis, CEO of GLAAD, said in a statement voters should head to the polls to November to contain and reverse the Kavanaugh confirmation and the Trump administration.

“Brett Kavanaugh has been granted the opportunity to ensconce President Trump and Vice President Pence’s hate-fueled anti-LGBTQ agenda on the nation’s top court for decades to come, threatening the hard-won rights of women, LGBTQ people, immigrants, and all vulnerable people,” Ellis said. “We must turn our attention to the ballot box in November to protect and preserve our most deeply held American values, and resist the tyranny of the Trump Administration.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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