The nomination of Judge Brett Kavanaugh to the U.S. Supreme Court is still in limbo after a long weekend of will she/won’t she over whether his accuser, Christine Blasey Ford, would testify before the Senate Judiciary Committee. Tentatively, that is scheduled to happen on Thursday, but it seems Ford’s attorneys are still working out details over the ground rules for questioning.
Then, the twist came on Sunday. A lengthy article in the New Yorker, authored by Ronan Farrow, the journalist that kicked off the “#MeToo” movement with his exposé of movie mogul Harvey Weinstein, told of allegations from another woman concerning inappropriate sexual behavior by Kavanaugh during his time at Yale. Kavanaugh issued a denial of this claim and, so far, no other witnesses have corroborated the claims by the alleged victim, Deborah Ramirez, in the New Yorker piece.
As it stands today, Kavanaugh and the first accuser, Ford, will likely testify on Thursday. However, that all could change depending on how the second allegation affects the course of the week.
As the New York Times reported on Sunday, the Kavanaugh nomination was meant to help bolster GOP turnout and prospects in November. Unfortunately for the GOP, that hasn’t panned out so far, and some Republican Senate candidates are feeling stuck in the middle of it:
No Republican Senate candidate has been as aggressive in using the Supreme Court nomination of Judge Brett M. Kavanaugh as a political weapon as Josh Hawley, the Missouri attorney general who is in an intensely tight race against Senator Claire McCaskill.
A former Supreme Court clerk, Mr. Hawley made his first campaign commercial about control of the court, and he assailed Ms. McCaskill for refusing to say if she would support Judge Kavanaugh. And after the accusation of sexual assault against Judge Kavanaugh last week, Mr. Hawley denounced Democrats for staging an “ambush.”
Yet in Missouri and other politically competitive battleground states, leaders in both parties are increasingly doubtful that Mr. Hawley and other Republicans can wield the Kavanaugh nomination as a cudgel without risking unpredictable repercussions in the midterm elections.
Suburban women are pivotal in this year’s campaign, and many of them were already tilting toward Democrats because of their contempt for President Trump. If Republicans are too harsh in their questioning of Dr. Blasey, they risk inviting an even greater backlash at the ballot box in an election where their House majority is in peril and their one-vote Senate majority is teetering.
And with record numbers of women running for office, their voices and those of female voters could crescendo in highly competitive election-year states from Arizona to Florida to New Jersey in support of Dr. Blasey if she testifies as scheduled. Her story makes it far harder, Republicans say, for their candidates to treat Judge Kavanaugh as an unalloyed asset and excoriate Democrats who oppose him.
“I think the assault allegations neutralize the Kavanaugh issue,” said State Representative Jay Barnes, a Missouri Republican, echoing the private assessments of a wide range of his party’s leaders.
The largest demographic giving Democrats an advantage is women. It’s been reported that 2018 could have the largest gender gap on record, and the Kavanaugh ordeal is not going to help matters for Republicans depending on how it plays out.
Democrats seemed to be bombing out on the Kavanaugh nomination with his vote scheduled and appearance that he was ready to sail through. That is, until the Ford accusation came out, leaked by the Intercept. This gave Democrats a needed momentum change to stall the nomination, hopefully until after the midterms, and possibly take the issue back. However, as this other story in the New Yorker asks, what do Democrats plan to do if they manage to derail Kavanaugh and/or take the Senate?
But there is a chance that the Democrats will take the Senate; that’s why Graham and his colleagues are so worried. What would the Democrats do then? One option would be to keep a Court seat open for the next two years, or the next six, if Trump is reëlected. But, if what was done to Garland was dirty and wrong—and it was—that is all the more reason for the Democrats not to emulate it. And, while they might energize their own base, it could mean losing what’s left of the middle, and of the Court’s legitimacy. They need a better strategy than mimicking Mitch McConnell.
Rejecting as many untenable or extreme nominees as Trump comes up with, though—taking them one at a time, giving each a fair, open-minded hearing—would make sense in a way that blind delay does not. If Kavanaugh’s confirmation fails, no one should expect that Trump’s next pick would be entitled to a seat. After Robert Bork’s nomination was defeated, in 1987, largely on the basis of his extreme jurisprudence, Ronald Reagan’s next choice, Douglas Ginsburg, withdrew after reports of his marijuana use emerged. That opened the door for Anthony Kennedy, who, as it happened, was worth holding out for. It also took Richard Nixon three tries to come up with a confirmable replacement for Abe Fortas, before succeeding with Harry Blackmun, the Justice who wrote the decision in Roe v. Wade. The Democrats need to win such fights in a manner that is consistent with their principles and their identity.
The implication from that this article is that the first nomination for a Supreme Court vacancy needs to be successful or else the second and third choices tend to have even more trouble than the first. Looking at the calendar would indicate that Kavanaugh needs to get confirmed very soon for the GOP to benefit on Election Day, or the confirmation gets pushed past the November 6 election and becomes a massive campaign issue which will inevitably energize both parties. Which party benefits as a result? Difficult to say.
If everything lines up for Democrats, they’d get Kavanaugh dropped, take the Senate, and then have the final say over holding out for a moderate Supreme Court pick sometime over the next 2 years. Trump could simply decide to leave the seat vacant, meaning we’d be dealing with a Supreme Court with 8 sitting Justices for quite some time. This is all theoretical, and things never line up quite as either party plans. Republicans are still more likely to hold the Senate than lose it in November, in which case Trump would pick someone else and the nomination would proceed as expected with Democrats having little to no say.
There is no telling what may happen in the coming days, but expect the unexpected and you’ll be just fine.