Rejecting the Confirmation Process: Modern Standards for Investigating Nominees to the Supreme Court

Elimination of the filibuster for nominations to the Supreme Court by Senate Majority Leader Mitch McConnell in 2017 upended the procedural calculus used by modern Presidents. No longer did endogenous rules encourage the selection of a nominee capable of attracting broad support in the upper house as long as the president's party controlled the majority in the Senate at the same time. In mid-2018, this led to the nomination of Brett Kavanaugh, the first appointment following the rule change, whose breadth of experience in public-life threatened discovery of unexplored vulnerabilities for Committee investigators. Ultimately, his nomination forced the most expansive investigation of any nominee to the Supreme Court in history. His background file exceeded one million pages of documents detailing his tenure in roles across the executive and judicial branches. Yet his confirmation almost met defeat from an allegation undisclosed to investigators until the eleventh hour.