Will Republicans Stick With Brett Kavanaugh?
By: Eric J Scholl
Tags: Supreme Court, Sexual Assault, Politics, Senate, Elections

Kavanaugh nomination back in July

Will Republicans Stick With Brett Kavanaugh?

Everything Changed For Trump’s Supreme Court Nominee This Weekend. But There’s One Thing That Hasn’t Changed…

That’s Senate Majority Leader Mitch McConnell’s determination that a new Conservative Justice be confirmed by the end of the year, just in case Democrats somehow regain control of the Senate, and with it the power to block all future Republican nominees unless they can also get on board with them. According to fivethirtyeight, at this point chances of Republicans losing the Senate are only 1 in 3, but McConnell well knows the risks and perils of counting on election outcomes, even if they seem to appear strongly in his favor. He knows because he’s been on the other side of it, and played it masterfully and utterly unfairly: refusing to allow President Obama’s last Supreme Court nominee, Merrick Garland get a hearing prior to the 2016 Presidential Election, even though polls showed Trump with a very slim chance of winning, and thus very little chance Garland (or an even more Left wing Hillary Clinton nominee) wouldn’t be approved. But you don’t see him on the Supreme Court now.

And if you go back to June, you’ll see McConnell warning against Trump selecting Kavanaugh, pushing two other candidates instead. McConnell at that time pointing to potential obstacles to the nomination, citing the judge’s active role in crucial and controversial decisions during the George W. Bush years, and with the Ken Starr investigation during the Clinton Presidency.

Despite sailing into Judiciary Commitee hearings on a raft of sunny portrayals of Kavanaugh as just an all-round great guy, he made a surprisingly poor showing of it: coming across as smarmy: not quite the warm basketball dad everybody loves. Yet it seemed Kavanaugh was well on his way to getting grudging approval from Committee Republicans even when the sexual assault allegations first came out. Because the victim was nameless and faceless, and Kavanaugh was “just 17” when the alleged attack happened.

Supreme Court nominee Brett Kavanaugh during a Senate Judiciary Committee hearing week before last

So what’s all changed? Christine Ford came forward this weekend in the Washington Post, meaning the allegations can now be openly investigated. And an attorney for the California researcher this morning says she is willing to testify before the Judiciary Committee.

Will this happen?

Republicans seem to have 3 options right now. (And remember, Republicans are all Kavanaugh/Trump/McConnell need. As long as they all approve Kavanaugh, he’s on the Supreme Court for life):

Bull through it. The Senate Judiciary Committee has a vote scheduled for Thursday. That Committee could just go ahead and vote to approve Kavanaugh, and unless one Republican Senator is opposed — even if all Democrats are — it’d go through. Right now, the only Republican on the Committee really wavering is Arizona’s Jeff Flake, who has wavered before and then almost always ended up coming down on Trump’s side. And all he’s said so far is he’s “not comfortable” right now voting for Kavanaugh, not that he unequivocally won’t. Of course that’s only the first step: the nomination would then have to be approved by a simple majority vote in the Senate. And no way McConnell will let Kavanaugh get to a vote on the floor of the Senate unless he’s sure he’ll be approved. That means McConnell will have to muster some combination of reluctant Republican moderates and Red State Democrats who are up for reelection this fall. Technically, even if the Judiciary Committee fails to approve Kavanaugh, McConnell still could call a full Senate vote. But again, he won’t unless he’s sure he’ll win. Find somebody new, quick. Judges Raymond Kethledge and Thomas Hardiman are the candidates McConnell previously promoted and preferred. Both have been vetted by the White House, and both reflect similar philosophies and beliefs as Kavanaugh, with a lot less baggage. (Although neither has the Harvard or Yale pedigree for which Trump seems to have an unwavering taste). Would it be bad form to ram such a nominee through on a ridiculously accelerated schedule? Yes. But McConnell wouldn’t think twice about it. Also, even though the Senate doesn’t roll over until January, we’ll know its composition by early November, so should Republicans hold, the speed of the approval process suddenly becomes less urgent. (Just a quick note because a lot of people have been asking about this: Democrats winning back the House would mean nothing in regard to Supreme Court nominees, since their approval is solely the job of the Senate). Investigate. Which would likely lead to Kavanuagh’s accuser speaking before the Senate. That would seem to be the most common-sense approach, except it messes with McConnell’s potentially very fragile timetable.

Does all this turmoil help or hurt Republicans or Democrats in the midterms?

On the one hand, does it matter?

On the other hand, one of the main things Republicans are likely considering right now is whether blindly continuing to back Kavanaugh no matter what will cost the party votes. As we noted above, Kavanaugh’s evasive and arrogant performance in Judiciary Committee hearings didn’t help.

At the same time, this isn’t without political risk for Democrats too. Right now, Red State Democrats who previously hinted they might vote to approve Kavanaugh aren’t quite saying he’s lost their support, just that it’s time to hit the “pause button” (borrowing from Alabama’s Doug Jones). And the idea that someone be held responsible in adulthood for something he did when he was 17 doesn’t necessarily sit well with large slices of the population, at least not without more definitive details.

But we’ll end where we started: the key is to watch McConnell. He’s going to ultimately determine what will and won’t happen and what Republicans can and can’t afford to do. The President might have some say as to how forcefully he wants leadership to stand behind Kavanaugh (or not), but it’s McConnell’s job to get this nominee through, or if not, make that call.