As the Senate prepared to vote last week to confirm Emil Bove to a lifetime seat on the Third Circuit Court of Appeals, one familiar name kept cropping up: Supreme Court Justice Brett Kavanaugh.
It will be seven years this October since senators confirmed Kavanaugh in the culmination of a politically fraught and highly emotional ordeal that tested personal beliefs and partisan loyalties. And while Bove’s confirmation process was nowhere near as explosive, Democrats and Republicans made comparisons to the Kavanaugh affair throughout.
Senate Judiciary Chair Chuck Grassley of Iowa accused Democrats of “dust[ing] off the playbook that they devised” for Kavanaugh in order to vilify Bove. Sen. Sheldon Whitehouse of Rhode Island, who is next in line to be the top Democrat on the committee in the next Congress, said Trump allies attempted to paper over ethical questions around Bove’s qualifications in the same way they shrugged off a sexual assault allegation against Kavanaugh.
“There’s a similarity here,” said Whitehouse. “[It] smells like political maneuver.”
It illustrates how one of the Senate’s most painful moments continues to haunt lawmakers — particularly those who sit on the Judiciary Committee, which has historically operated on a bipartisan basis at the frontlines of helping the legislative body fulfill its obligations to advise and consent.
“Kavanaugh has kinda become a verb,” said Sen. Lindsey Graham (R-S.C.), a senior member of the Judiciary panel whose defense of the Supreme Court nominee in 2018 catapulted him to conservative stardom.
At least three different whistleblowers came forward ahead of Bove’s confirmation vote with allegations against the nominee, who served as President Donald Trump’s former criminal defense attorney before becoming a senior Justice Department official. Democrats pressed Bove about his role in facilitating the dismissal of federal corruption charges against New York City mayor Eric Adams, and whether he suggested the administration ignore court orders that would undercut the president’s immigration agenda.
In Bove’s case, the allegations were markedly different from those lodged by Christine Blasey Ford against Kavanaugh, who she said sexually assaulted her in high school — an offense Kavanaugh unequivocally denied. But the tactics deployed by Democrats and Republicans in these cases mirror each other.
In the fights over Kavanaugh and Bove, Democrats and Republicans accused each other of acting in bad faith. With Bove, each party leveraged the other’s behavior during the Kavanaugh episode to undermine the opposite side’s credibility.
“I think it was an embarrassment to the Republicans, with Kavanaugh, that someone would come before us and literally tell her story under oath, a very credible presentation,” said the panel’s ranking member Dick Durbin of Illinois, who was a senior member of the panel when it considered Kavanaugh’s nomination. “I think the same thing is true of these whistleblowers.”
Blasey Ford’s allegations were submitted to Democrats long before they came to light, completely upending Kavanaugh’s anticipated glidepath to party-line confirmation. The new information forced the Judiciary Committee to regroup to hear testimony from Blasey Ford and hold another round of questioning for Kavanaugh.
Still, Democrats complained that Republicans, and the Trump administration, cut corners to expedite a final vote on Kavanaugh. Democrats, in Bove’s case, also accused Republicans of acting too hastily to confirm their nominee, including by refusing to hold an additional hearing with at least one of the whistleblowers who went public.
Conversely, Republicans accused Democrats of waiting until the immediate leadup to Bove’s scheduled confirmation vote to highlight potentially damaging claims against him.
“I felt like it was Kavanaugh-esque,” said Sen. Thom Tillis (R-N.C.). “[The whistleblowers might have] thought at the eleventh hour, without time to complete due diligence, that maybe they could get through.”
Tillis, who is not running for reelection, had previously announced he would oppose nominees who expressed support for the attack on the Capitol on Jan. 6, 2021; Bove was involved in the dismissal of prosecutors who worked on DOJ cases tied to the attack and advised on White House pardons of the rioters. Tillis was seen as a potential “no” vote who might have blocked Bove from being reported favorably out of the Judiciary Committee; he ended up voting “yes.”
“When you call everyone corrupt, nobody’s corrupt; when the Democrats bring forward whistleblowers every other Thursday, coincidentally just before the vote … to confirm somebody that they oppose, people just tend not to pay attention to the whistleblowers,” said Sen. John Kennedy (R-La.). “The last minute whistleblowers look contrived and are getting old.”
Ultimately, Bove was confirmed last week in a narrow 50-49 vote, over objections from two Republicans, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. Notably, neither of them formally opposed Kavanaugh on the Senate floor, with Collins deciding to support him and Murkowski voting “present.”
As the shadow of the Kavanaugh saga lingered over the Bove proceedings, it’s possible the bad feelings between the two parties from both episodes will continue to worsen: Democrats are already bracing for the possibility that Trump could be in a position to appoint another justice on the Supreme Court if a vacancy occurs, which would set up another monumental political battle.
And while the confirmation of conservative jurists was a key pillar of Trump’s first term, Trump is making clear that, in his second term, loyalty is the driving factor in his selection process, said Sen. Richard Blumenthal (D-Conn.).
Trump is also now pressuring Grassley to abandon the practice of allowing home state senators to effectively veto potential U.S. attorneys or district court judges for their own state, and Senate GOP leadership is considering changing the chamber’s rules in the fall to speed up the process for confirming some nominees. Both would further shake up institutional precedent just as Democrats say the Kavanaugh and Bove cases challenged the status quo.
“I do think that the sense of frustration and even anger has become more pronounced simply because there are so many rules and norms that they are defying and disregarding without even a pretense of fairness,” Blumenthal, a member of the Judiciary Committee, said of the chamber’s judicial confirmation process.
“I think the partisan divide may have deepened somewhat,” he continued. “The issue is the same –that is, the denial of a full and fair investigation of the nominee, whether it was Kavanaugh or Bove.”
