US Supreme Court: Partisanship in the extreme

Back in 1793, the Founding Fathers of the US figured 26 Senators had more resources (all were white, landed gentry, plantation owners from the South and industrialists from the North) than the president, just one man, and they could more thoroughly vet his nominees for high Federal positions, checking qualifications and skeletons in their closets. The Senate followed Roberts' Rules, so any Senator could delay any bill (or confirmation) for as long as he could keep talking, and 2/3 of the Senate was needed to vote for cloture, so, if more than 1/3 of all the Senators vehemently objected to a nominee, they could prevent confirmation, hence, all nominees had to be acceptable to more than 2/3. When one or more Senators delayed a bill by taking the floor and keeping it, so the bill could not come up to a vote without cloture, that acquired the name 'filibuster'.

Presidents always nominated men their assistants had assured them were very well qualified and had no past history that would be vehemently opposed. The Senate usually spent a few weeks checking that the president hadn't missed any scandal or lies on the nominee's CV, then generally confirmed him.

Then a very well qualified candidate with no scandals in his past was Borked by the Democrats, and that started the ball rolling down the snow-covered mountain. When Obama was elected, the Republicans tried to block every bill and appointment. The first two years, Obama had a filibuster-proof majority of 60, and got the ACA and 2 Supreme Court appointments: 2 Democrats replacing 2 Democrats, so the court remained 4 - 4 -1 (the 1 being Kennedy, a nominal Republican, but one who would join either the Democrats or the Republicans unpredictably). In 2010, the Democrats lost their filibuster-proof majority, and the Republicans began blocking all laws and appointments, with a few exceptions (they eventually agreed to keep the government running, after letting it 'shut down' once).

In response, the Democrats abolished the filibuster for all appointments except the Supreme Court, and managed to fill many of Obama's appointments until 2015, when the Republicans had a majority in the Senate. When a Republican justice on the Supreme Court died, the Republicans said they would never confirm anyone nominated by Obama, so his nominee, Garland, was never confirmed.

After Trump took office, he nominated a Republican justice to fill the place of the deceased Republican justice the Senate refused to let Obama replace. The Republicans abolished the last filibuster, that for Supreme Court justices, and quickly confirmed Trump's nominee.

Then Kennedy announced his retirement, and Trump appointed Kavanaugh, giving the Republicans a reliable 5 - 4 majority they had not had, and the Democrats went crazy. A minority without a filibuster, they began trying everything they could think of to block the confirmation. Nothing worked. On 13 Sept 2018, the Judiciary Committee, who first check the nominee, voted 11 - 10 to confirm as quickly as possible. The Democrats used their right to demand a one week delay, so the Committee was ready to vote to recommend confirmation on 20 Sept 2018, again, 11 - 10, after which the Senate was expected to vote the next day or the next week 51 - 49 to confirm.

Then the Democrats released a letter Prof Ford had sent months before that said the nominee had sexually abused her! That 11 - 10 vote to recommend confirmation became 12 - 9 to say no recommendation was possible before an investigation into Prof Ford's charges. The chair of the Judiciary committee wanted the investigation to take place on Monday, 24 Sept, but Prof Ford objected. The Democrat's goal (and Prof Ford is a Democrat) is to delay the confirmation vote until January, when the Democrats might have a majority in the Senate. The Committee gave her until 27 September, when she appeared and tearfully recounted the abuse. She had no idea of the day, date, time, or year, only early to mid '80s, most likely 1982, but not absolutely certain. Then the nominee Kavanaugh defended himself, showing that he kept detailed calendars of when and where he was since the '70s. No meeting with a young Prof Ford. But there are blank spaces on his calendars, and he needs an alibi for every hour of every day from 1980 until 1986, since Ford has absolutely no idea when the abuse happened, but she is sure that it must have been when Kavanaugh has no alibi.

Every Democrat 'knows' Prof Ford is telling the truth and Kavanaugh is lying. Most Republicans 'know' Ford is lying and Judge Kavanaugh is telling the truth. Every Democrat 'knows' that, even if there's no proof, one cannot appoint someone to the US Supreme Court with an allegation of sexual abuse hanging over him. Most Republicans 'know' that, if there's no proof, one cannot deny someone an appointment to the US Supreme Court based on an unproven allegation.

The Republicans had a 51 - 49 majority to confirm. On 28 September, the Judiciary Committee voted 11 - 10 to recommend confirmation as quickly as possible, but Senator Flake, who was one of the 11, said he did not want to vote to confirm before an FBI investigation (even though he voted to recommend confirmation as quickly as possible).

So now no one knows what will happen if the Senate majority leader calls for a vote. Do the Republicans still have 51 votes? They only need 50 to confirm. Do they even have 50? No one knows.

The Democrats have played a very weak hand brilliantly. Kavanaugh would be a confirmed member of the Supreme Court by now had it not been for Ford's unprovable accusation, to which two more Democrat women quickly joined with more allegations of sexual abuse (but the Judiciary Committee only agreed to hear Ford). The Democrats desperately want an investigation that drags out until January. The Republican leadership desperately want to confirm before January, but may or may not have the votes, and if they have a vote and confirmation is rejected, they can't have an investigation and a re-vote, one shot is all Kavanaugh gets. And time is running out to get a justice confirmed before January.