For Republicans, getting a second Supreme Court vacancy before the end of Donald Trump’s second year in office has been like winning the lottery twice. The decision to discard democratic and legislative norms by refusing to hold hearings for Barack Obama’s nominee Merrick Garland paid off enormously, with Neil Gorsuch’s confirmation to the Court in 2017 and Justice Anthony Kennedy’s retirement in June of 2018. With five months to go until the midterm elections, confirming Kennedy’s replacement should have been a cakewalk.
Instead it’s been a mess. Trump’s nominee Brett Kavanaugh had a voluminous paper trail, but his nomination wasn’t truly imperiled until this past Friday: He was accused of sexually assaulting a 15-year-old girl at a party three decades ago, when both were in high school. Most Republican senators seem at peace with the moral aspect of this dilemma: the presence of two men on the High Court credibly accused of sexual harassment or abuse, poised to overturn Roe v. Wade. But the political conundrum may give them pause.
Republicans have scheduled a public hearing before the Judiciary Committee on Monday, during which both Kavanaugh’s accuser, Christine Blasey Ford, and Kavanaugh are expected to testify. In the meantime, Republicans will be considering a number of bad options: pushing Kavanaugh ahead, despite the allegations; forcing him to withdraw and attempting to confirm another Federalist Society–approved judge before the next Congress is sworn in early January; or betting on a favorable Senate map and waiting until the next Congress.
The first option is the most likely, but the problem is that it is sure to inflame an already motivated Democratic base, jeopardizing the GOP’s control of Congress. Democratic voters will see Kavanaugh’s nomination as part of a pattern of misogyny emanating from the White House, whose occupant is also credibly accused of sexual harassment. Furthermore, losing even one chamber would be an existential threat to Donald Trump’s presidency, since it would give Democrats the power to hold hearings on a wide range of the president’s unscrupulous activities.
At the same time, it’s unclear whether a successful nomination would help or hurt Republican turnout. It could lead to complacency, or Republican voters could see it as evidence that Trump had followed through on one of his most important campaign promises to them.
Then there’s the second option. It’s possible that Kavanaugh could withdraw after publicly losing support of a handful of Republican senators who at times have been at odds with Trump, at least rhetorically. Susan Collins, Jeff Flake, Lisa Murkowski, and Ben Sasse have all expressed concern about the allegations and said that Kavanaugh’s accuser should be heard. These Republicans are torn between their conscience and/or political image on the one hand, and the ardent desires of their hard-core constituents on the other. There would be a dear price to pay for jeopardizing a generational majority on the Court.
Pushing another nominee through before January 3 is highly unlikely, given the amount of time the confirmation process takes. It could also hurt the GOP at the polls in another way. It would be enormously cynical to confirm a Supreme Court justice during midterm elections after blocking Garland under the pretense of “letting the people decide.” It would draw even more attention to the GOP’s hypocrisy and undemocratic maneuvers.
Republicans could also wait out the storm, and use the re-election of a GOP-controlled Senate to claim legitimacy for another nominee. Already, conservative media outlets are ginning up an outrage machine. If Kavanaugh’s nomination was actually scuttled, Republicans would have 60 days to churn out ads turning him into a perverse Merrick Garland: a rightful Republican-nominated justice whose seat was stolen by cynical Democrats. But given the importance of Anthony Kennedy’s Supreme Court seat, that’s a huge risk to take. Yes, Republicans have a strong chance of maintaining control of the Senate, but it’s far from a sure thing.
So the likeliest outcome is that Republicans will push Kavanaugh through anyway. Over the last three years, they have faced a similar choice, and they have often chosen to stick with the candidate credibly accused of sexual misconduct. That bet paid off with Donald Trump, who has gone on to appoint a slew of federal judges who will exert enormous influence for decades. Confirming Kavanaugh may ultimately cost Republicans Congress, but there is seemingly nothing the GOP isn’t willing to lose as it embraces its new identity as the party of Trump.