KUSA — Judge Brett Kavanaugh's nomination to become the next justice on the U.S. Supreme Court once seemed like a sure bet. Kavanaugh is a judge on the U.S. Circuit Court of Appeals in Washington, D.C., the court that has effectively functioned as a conduit to serving on the highest court in the land. And Kavanaugh, an unabashed conservative, has solid support among the leadership of the Republican-controlled Senate.
But allegations – still unproven – that Kavanaugh sexually assaulted a girl while in high school and exposed himself to a classmate while in college have roiled the Senate and made his confirmation far from certain.
Kavanaugh is not the first nominee to face an uphill battle to confirmation. So, what have we learned from these cases?
First, it's important to know that the process of confirming a Supreme Court nominee is much different than the procedure for how a bill moves through Congress. In the legislative process, if a bill fails to pass any step in the process – in committee, in the House or Senate – it fails.
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But a Supreme Court nominee can actually not "pass" the Senate Judicial Committee and still have a chance for confirmation by the full Senate.
A vote by the Judiciary Committee "is a preliminary step. It is just a recommendation," said Joshua Wilson, a professor of political science and expert in Constitutional law at the University of Denver.
The committee can present the nominee to the Senate with three options: recommend favorably, recommend unfavorably or no recommendation.
A look at recent voting history shows that committee usually votes to "recommend" a nominee to the full Senate. Often the vote to recommend falls along party lines, but occasionally a nominee gets unanimous backing from the committee. See Ruth Bader Ginsburg and Stephen Breyer.
But Justice Clarence Thomas and nominee Robert Bork each failed get a favorable recommendation from the committee.
In 1991, the committee split on a favorable recommendation for Thomas 7-7, and ended up voting 13-1 to send no recommendation to the full Senate. The Senate confirmed Thomas 52-48.
In 1987, the committee voted 9-5 to give Bork an unfavorable recommendation.
"Bork, you get the committee rejecting him there, but then forcing a floor vote where he, again, loses," said Wilson.
The Senate rejected Bork 58-42.
Wilson said there are behind the scenes conversations these days, where if the nominee seems to be in trouble, they'll likely back out of the nomination before losing in a vote.
Bork, like Kavanaugh, is a judge on the federal appeals court in the District of Columbia. After his Senate loss, Bork retired from his spot on the appeals court.
If the Senate were to reject Kavanaugh as a Supreme Court Justice, he would simply go back to his current job on the federal appeals court.
"The vast majority of cases are decided by the circuit courts, where one of which he sits on now. It is roughly only about one percent of cases that are appealed to the Supreme Court that get decided by the Supreme Court. The massive amount of law is decided at the layer right below that. So, he would still have an incredibly powerful position," said Wilson.
The Constitution provides no qualifications for a Supreme Court Justice. There are no requirements on age, education level or profession.
Someone's behavior is at the discretion of the Senate. What a nominee may have done as a teenager or in college, regardless of the accusation, doesn't necessarily disqualify them from being confirmed as a Supreme Court Justice.
"Judicial authority really relies on people believing in the impartiality of judges and of justices, so this is why something that happened as a high schooler, that then appears to maybe have happened again in college, it's a character trait and leads to eroding faith in the justice and the justice's impartiality, which then helps unravel the power of the judiciary," said Wilson.
