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The GOP’s Least-Worst Option Is If Kavanaugh Withdraws — And Soon

Brett Kavanaugh has never been a popular Supreme Court nominee — and he’s probably becoming more unpopular still following allegations earlier this month by Christine Blasey Ford that Kavanaugh had sexually assaulted her when they both were in high school. No one this unpopular has ever been confirmed to the Supreme Court; the only previous nominees who polled as poorly as Kavanaugh either had their names withdrawn (Harriet Miers) or lost their confirmation vote (Robert Bork). And all of this polling was taken before at least two other accusations surfaced of potential sexual misconduct involving Kavanaugh1 — and before Ford and Kavanaugh’s testimony before the Senate Judiciary Committee, which is scheduled for Thursday.

President Trump and Congressional Republicans are not afraid to take unpopular actions in pursuit of their ideological goals. Last year, they spent many months trying and failing to pass a repeal of Obamacare, even though those efforts were extremely unpopular. And they passed a tax bill that was highly unpopular at the time of its passage, although its numbers have since improved some. The Supreme Court is at least as much of a priority for Republicans.



The difference on Kavanaugh is that there are several other conservative nominees who could potentially replace him — and who may have been better picks in the first place. In other words, you would think Trump and Senate Majority Leader Mitch McConnell have better options than rolling the dice with Kavanaugh. Amy Coney Barrett, for example, a judge on the 7th Circuit and one of Trump’s reported finalists when Kavanaugh was chosen, has several advantages from the GOP’s point of view. She’d potentially be more conservative than Kavanaugh, at least on issues such as abortion; she’s already been confirmed (to her circuit seat) by the current Senate; and it might not hurt Republicans to choose a woman when the four conservatives on the current Supreme Court are all men.

Barrett also isn’t facing several accusations of sexual misconduct, as Kavanaugh is.

But there’s a midterm coming up in just six weeks. And there’s about a 3 in 10 chance that Republicans lose the Senate, according to the FiveThirtyEight forecast. Could Republicans really get Barrett or another nominee confirmed before then? And if not, could they confirm her in the so-called lame-duck session after the midterms but before the new Congress meets on Jan. 3.

The answers are “possibly” and “probably” — but the timing is getting dicier by the day. As of Tuesday morning, we’ll be 42 days away from the Nov. 6 midterms, and exactly 100 days away from when the new Congress convenes. The eight current members of the Supreme Court variously took between 50 and 99 days to be confirmed:

How long does it take to confirm a Supreme Court justice?

Days from nomination to confirmation for current members of the Supreme Court

Justice Days from nomination to confirmation
Ruth Bader Ginsburg 50
John Roberts* 62
Neil Gorsuch 65
Sonia Sotomayor 66
Stephen Breyer 73
Samuel Alito 82
Elena Kagan 87
Clarence Thomas 99
Days until midterms 42
Days until next Congress 100

*Roberts was initially nominated for associate justice and then withdrawn and re-nominated for chief justice; our count of his confirmation time includes the combined time from both nominations.

Source: WIKIPEDIA

That makes the timing awfully interesting (and makes Republican complaints about Democratic delays to the process a little easier to understand). If Kavanaugh were to withdraw his name today, and Trump were to nominate someone else in his place tomorrow, the GOP might be able to confirm the replacement before the midterms — but the timing would be tight and would require a faster confirmation process than for any current member of the Supreme Court.

The lame-duck session would be a safer bet, but it’s not without risk for the GOP. One problem is that they might lose the Senate — to repeat ourselves, there’s about a 30 percent chance of this. Because the Senate is a much heavier lift for Democrats than the House, in the scenarios where the GOP loses the Senate, they’d probably also lose the House by wide margin; in our simulations, Republicans lose an average of about 50 (!!) House seats in scenarios where they also lose the Senate. The House doesn’t have any say in the Supreme Court nomination process, but would Republicans really want to push forward a nomination after losing by such a landslide margin?

My guess is probably yes — a Supreme Court seat really is that important to them. But the politics are uncertain; there aren’t really a lot of recent precedents for a party taking such significant action during the lame-duck session. And several Republican senators, after just having seen their colleagues take a drubbing in the 2018 midterms, might be skittish about what such a vote would mean for their survival in 2020, when the Senate map is a fairly tough one for the GOP.

In addition, there’s the chance the next nominee could have vetting problems, too. Historically, about 25 percent of Supreme Court nominations lapse, are voted down or are withdrawn.

Here’s the thing, though. The longer the GOP takes to replace Kavanaugh, the worse the timing problems become for them. If, say, the confirmation process on Kavanaugh drags out for another two weeks before he’s voted down or withdrawn, and then Trump takes another two weeks to choose a replacement because the overall process has become such a mess, then confirmation before the midterms would be extremely challenging. There also might not be enough time to seriously vet the new nominee before the lame-duck session, giving Republicans less margin for error then, too.

So why not just “plow right through” and vote to confirm Kavanaugh anyway, allegations and everything else aside? Although there’s a good chance McConnell is bluffing, that seems to be the current plan, with McConnell having promised a vote in the “near future” on Kavanaugh and no accusers other than Ford set to testify.

The problem is that this is an extremely live news story; with several new accusations having come out against Kavanaugh over the weekend and debates about the credibility of Ford’s allegations still ongoing. It’s hard to know what would happen to Kavanaugh if more accusations came out after he’d already been confirmed to the Supreme Court, but the possibilities include impeachment and serious long-term damage to the Court’s reputation — along with whatever additional price the GOP had to pay at the midterms. Even if the GOP were able to confirm Kavanaugh before the midterms this year, a landslide election could put the GOP in a considerably worse position to hold the Senate when other Supreme Court nominations come up in 2019 through 2024.

Put another way, there are huge risks to the GOP in both rushing to confirm Kavanaugh and in letting the process play out for several more weeks — which means that encouraging Kavanaugh to withdraw now, however painful it might be, is probably their least-worst option.

There is one other possibility, which is that McConnell — who reportedly didn’t want Kavanaugh to be chosen in the first place — could be rushing through the process in the hopes that Kavanaugh will be voted down (or forced to withdraw once it becomes clear that McConnell doesn’t have the votes). Back when Ford was Kavanaugh’s only accuser, this had seemed like a fairly likely exit strategy: The hearings would be engineered to allow Kavanaugh to save face, and perhaps to allow Republicans to stoke some grievances with their base. But wavering GOP senators such as Susan Collins and Jeff Flake would find some excuse to oppose his nomination and his nomination would be pulled. This scenario still seems like a distinct possibility — but the fact that the Kavanaugh story is developing so rapidly, with the stakes continuously increasing with every news cycle, could mean that McConnell is now pot-committed to the bluff even if he’d been hoping to keep his options open before.

I haven’t said much about the potential electoral upsides to the GOP of the confirmation process, such as possibly increasing base turnout, and putting vulnerable Democratic senators such as North Dakota’s Heidi Heitkamp to a tough vote on Kavanaugh or another nominee. That’s because I’m a little bit skeptical of them. Contrary to the conventional wisdom, it’s not clear that rank-and-file voters care about the Supreme Court as much as party activists and other “elites” do. And despite predictions that Anthony Kennedy’s retirement would help the GOP, Republicans’ electoral outlook has only gotten worse since then (and they’ve had especially poor polling in the past week or two).

For all that said, the Kavanaugh story has become unpredictable enough that its electoral effects are fairly uncertain, even if they’re weighted toward the downside for the GOP. If I were a Republican member of Congress facing reelection in 2018 or 2020, I’d just much rather take my chances with Barrett than with Kavanaugh.

Footnotes

  1. And possibly a third accusation, although the reporting on it is extremely vague.

Nate Silver is the founder and editor in chief of FiveThirtyEight.

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