New Kavanaugh Allegations Give Republicans Only One Choice
Jonathan Bernstein’s morning links.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
Senate Republicans, and the Republican Party in general, now face exactly the same choice with the Supreme Court vacancy they faced a week ago when Christine Blasey Ford’s story went public. It’s just more obvious now that the New Yorker has detailed a second accusation.
Let’s put aside the damage to the Supreme Court if a second justice is confirmed despite serious allegations of sexual misconduct. Let’s also put aside the injustice to Brett Kavanaugh if he’s actually innocent of these charges, as he says he is. Those are serious questions, but this is a political nomination for a political position, so let’s just focus for a moment on the immediate politics of the situation.
Republicans can theoretically bull ahead, with at least 50 of the 51 Senate Republicans agreeing to support an unpopular nominee with now two serious accusations of sexual assault against him.
It they do, they risk additional evidence emerging that would make one or both of these allegations appear to be true. They risk additional stories showing up. They risk the likelihood that one or more Republican politicians will say something incredibly offensive and potentially electorally damaging, the way North Dakota Senate candidate Kevin Cramer did over the weekend. They risk the possibility that their party winds up on the wrong end of a national split between those who take sexual assault seriously and those who don’t. They risk a backlash from supporting a nominee who has been unpopular throughout the process and has become more unpopular.
They’re already guilty, if reporting from Ronan Farrow and Jane Mayer is correct, of rushing to confirm the nominee before a story they knew was coming went public. How many more ugly-looking steps will they take if they push ahead?
If they drop the nomination, they get the chance to confirm an entirely different Supreme Court nominee with virtually the same positions on everything. There’s no shortage of such folks.
There is another option: They could wait for a full, proper investigation to be conducted. But the downside risk is even worse than confirming him despite everything, because the clock is ticking on confirming a replacement during the current Congress: If Democrats win a Senate majority, they would (at the very least) insist on a compromise nominee. Republicans certainly have very strong incentives to avoid that possibility.
This isn’t a criminal trial. It’s politics. The Framers gave nomination power to the politician in the White House and confirmation power to politicians in the Senate. Legal presumption of innocence doesn’t apply. Kavanaugh certainly wouldn’t be the first high-ranking political figure to lose an opportunity due to accusations of misconduct. That’s not to say there would be no injustice to him involved (if he is telling the truth); political parties make decisions all the time to select one candidate and not another, with very little concern for fairness. Indeed, it wouldn’t be surprising if there’s some Republican appellate court judge right now who lost out on this nomination thanks to unconfirmed rumors about something that might look bad during confirmation.
And don’t tell me that Democrats will just smear the next candidate because they supposedly always do. As several people have pointed out, no such charges surfaced against Neil Gorsuch, John Roberts or Samuel Alito — either when they were nominated or, for that matter, since then. Nor have there been any against Donald Trump’s nominees for circuit court positions, or, if I recall correctly, for any of George W. Bush’s, either. Nor have there been such allegations against any of Trump’s cabinet officials. That of course isn’t evidence that what two women have said about Kavanaugh is true. But it does mean that there’s no reason to believe that if Republicans sink this nomination that Democrats will respond with smears of other Republicans.
I continue to believe that the injustice of putting Kavanaugh on the Supreme Court if what Ford and Deborah Ramirez say is true outweigh the injustice of withdrawing the nomination if he is innocent. Withdrawing the nomination is the right thing to do.
But never mind that: It’s clearly in the political interests of the Republican Party to cut their losses here and move on. How? All it would take is for three or four Republican senators to tell Mitch McConnell — privately if possible, publicly if necessary — that they plan to vote against the nomination. He’d have no choice but to pull the plug. And if that doesn’t happen, it will be just the latest evidence of serious dysfunction within the party.