Published on October 29, 2018 by ottohopkinsfagan

Brett KavanaughWhat have been the effects of the Brett Kavanaugh case in the US and how can it be discussed at UK law interviews? In this article, we detail the key facts, main issues and the subsequent effect on the US Constitution.

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What Happened?

  • 8 July 2018 – The President of the United States, Donald Trump, nominates his candidate of choice; Senator Brett Kavanaugh to fill the seat vacated by retiring justice Anthony Kennedy.
  • 27 Sep 2018 – There is a public hearing organised by the Senate Judiciary Committee on sexual allegations by three women including professor Christine Blasey Ford, Deborah Ramirez and Julie Swetnick against Senator Brett Kavanaugh.
  • 4 Oct 2018 – The FBI hands over its report on Senator Kavanaugh. Amongst other claims, the FBI Inquiry did not address the claims of Julie Swetnick and the judge’s drinking habit.
  • 6 Oct 2018 – Despite the case, Brett Kavanaugh is sworn in as Supreme Court Justice by a vote of 50-48.

What are the Key Issues?

#1 The FBI Inquiry was not Effective

The use of an inquiry as opposed to an investigation is to be scrutinised. Former FBI Assistant Director Chris Swecker told CNN that inquiry reports do not contain conclusions. This weakens the effectiveness of an inquiry. Furthermore, as opposed to an investigation, which compels co-operation inquiry reports merely document what information has been provided.

In addition, the scope and timing of the FBI Inquiry has been questioned. The fact that Senator Kavanaugh was elected despite the above allegations adds to public outrage. According to official sources as reported by the BBC, the FBI interviewed 10 persons including key witnesses relating to the allegations made by Professor Ford and Deborah Ramirez. However, Professor Ford herself was not interviewed. This casts doubt on the efficacy of collaborating information and strengthens the claim that the FBI Inquiry was possibly a façade.

#2 How Does this Affect The US Constitution?

The Significance of Brett Kavanaugh’s successful nomination for the Trump administration is outlined below:

  • Brett Kavanaugh becomes the second successful nomination under the Trump administration following Neil Gorsuch.
  • However, Bill Clinton and Barack Obama have each respectively nominated 2 candidates of their choice to the Supreme Court.
  • Therefore, this is not an atypical phenomenon. Justice Brett Kavanaugh’s impact on the constitution should be judged accordingly when they are released and not from this political fanfare.

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#3 Are Constitutions Inherently Political in Reality?

Here’s a snapshot of what to discuss:

  • The nomination of Brett Kavanaugh has no direct impact in the UK.
  • Any claim that constitutions are inherently political are unfounded insofar as the nomination of justices are conflated with what grounds the constitutions – actual judgments
  • However, the Brett Kavanaugh incident does well to lead us into a discussion of parliamentary sovereignty. The similarity is in Parliament having the right to make or unmake any laws, per A V Dicey, in analogy to President Trump’s political clout in influencing the nomination of judges.
  • Constitutions are therefore political in the sense that the nomination of judges cannot be divorced from politics. But we ask ourselves, what is politics? Politics in the American context means the Trump administration. In the UK, it means parliament having some degree of influence over nomination of judges. S26(3) Constitutional Act 2005 stipulates that the Prime Minister has the power to recommend a judge to be appointed to the Supreme Court. Despite effective reform, the political connection with appointment of judges cannot be decoupled absolutely from any democratic society.
  • Therefore, discussion should centre on whether judges themselves are given the opportunity to adjudicate freely from political interest. In the Brett Kavanaugh fiasco, it would be wiser to divorce the judge’s nomination from his actual judgements. Similarly in the British Constitution, the work of judges should be construed in accordance with the effects of their judgments not whether they have any political affiliation.

Being able to understand complex legal cases is a key skill all lawyers must have. For more key skills, click here. >>

The Brett Kavanaugh is an interesting, public case and may be something that pops up at interview or in conversation over the coming months.

For more ‘How to Discuss’ articles, click here:

Author: Edwin Teong Ying Keat


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