I assume you’ve already read the article in The Washington Post in which the unnamed accuser of Brett Kavanaugh goes public with her account of what happened. I don’t have anything to add to the account or what it means. Those speak for themselves. I have more insight into the potential political fallout. A lawyer shepherding the nomination on behalf of the White House said this to Politico: “No way, not even a hint of it. If anything, it’s the opposite. If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. We can all be accused of something.”
That is quite a statement, suggesting that Christine Blasey Ford’s accusation has transformed the confirmation fight from a mere Supreme Court confirmation battle into some sort of freedom movement on behalf of men accused of rape. This attitude seems particularly suited to the Trump White House. But we shouldn’t kid ourselves about just how hard Republicans are likely to fight to save Kavanaugh’s nomination.
We are now less than two months before the November election. If Kavanaugh’s nomination is defeated, selecting another nominee and then getting that nominee confirmed before the election will be a serious challenge. What if the Democrats take control of the Senate? That’s not likely but it does now looked possible. There’s no legal bar on the Republicans rushing a confirmation through a lame duck Senate. But it’ll be tough. And there are tools Democrats could use to bring the Senate to a standstill.
It is of course true that the Republicans have shown there’s no norm or tradition they won’t violate in a situation like this. But these are real obstacles. They create great uncertainty about the outcome of another nomination. Republicans and the conservative legal movement (led by and typified by The Federalist Society, but not limited to it) have been working to get this fifth vote for more than forty years. This is the pay-off. They got one part of the way there with the corrupt Gorsuch nomination. Now they have the fifth vote in their sights.
The chance of letting that opportunity slip through their fingers is unthinkable.
The White House and Senate Republicans are likely thinking that regardless of the credibility of the claim or what they think of it, Kavanaugh absolutely positively has to be confirmed. Because it’s not just about Kavanaugh. If he’s not confirmed it opens up the possibility that they won’t get the chance to replace Justice Kennedy and secure the fifth vote on the Court at all. Given that the Garland seat was stolen, should Democrats reclaim the chamber, I don’t think they should approve any nominee from President Trump. That’s unlikely. But Democrats won’t give the President the opportunity to nominate a maximalist right wing judge the way Republicans are now. That’s a big difference.
None of these scenarios are likely. Odds are Republicans will retain control of the Senate next year. But they’re possible. Republicans and conservatives have been fighting too long for this moment to leave anything to chance.
