The fight over Brett Kavanaugh’s Supreme Court nomination looks much different after Christine Blasey Ford came forward in a Washington Post interview and said that he attempted to sexually assault her when the two were in high school. What happens next? Will President Trump and Senate Republicans stick with Kavanaugh? Right now, we have more questions than answers. Here are the big ones …
How do the looming midterms affect Republicans’ choices? A big part of this story comes down to timing. An investigation of the allegations, as Democrats have called for, would almost certainly take at least a few weeks. And if Republicans decided in mid-October that they could not move forward with Kavanaugh’s nomination, they might not have time to choose a new nominee and get him or her through the confirmation process before the current Senate session ends in December. The Supreme Court nomination process for Kavanaugh was scheduled to last about three months — from Justice Anthony Kennedy’s resignation in late June to a full Senate vote on Kavanaugh’s nomination, which was expected in late September — at least until this news broke. So if Republicans want to move on from Kavanaugh and try to get a different nominee confirmed, they probably need to pick that person during the next two weeks in order to finish the process by the end of December.
What’s wrong with waiting till January? Well, Republicans are expected to maintain control of the Senate — they’re 2 in 3 favorites according to our latest Senate forecast — but if Democrats gain control, it’s hard to imagine them confirming a second Trump appointee to the court. So the GOP has some incentive to either fully stand behind Kavanaugh — or abandon him very quickly. Remember, the current Senate, which has 51 Republicans and 49 members aligned with the Democrats, is in operation through the end of the year. The people elected in November don’t start serving immediately. So Republicans, no matter what happens in the midterms, can push a Supreme Court nominee through until the end of the year. There would be strong criticism of Republicans if they pushed through a Supreme Court nominee in December if the voters had elected a Democratic Senate a month earlier, but Senate Republicans have ignored such norms before and I expect would be fine with doing so again for the purpose of ensuring a solid conservative majority on the Court.
What other details come out? This is still a developing story, which makes predicting what Senate Republicans will do basically a fool’s game. For example, what will Kavanaugh say next? Are there other women with similar accusations? A second woman accusing Kavanaugh of sexual misconduct would likely sink his nomination. Yes, Trump won the White House despite numerous accusations against him, but other political figures have faced consequences.
What do the Republicans controlling the nomination process do? Ultimately, only two people have the singular power to end Kavanaugh’s nomination: Mitch McConnell and Trump. McConnell could decline to take it to the Senate floor. Trump could withdraw it. And you could argue that Senate Judiciary Committee Chairman Chuck Grassley should also be in that category. If Grassley indicated that he was uncomfortable with bringing Kavanaugh’s confirmation to a vote, I think that would push McConnell toward reconsidering it.
Grassley and the White House have already said they are standing behind Kavanaugh. But McConnell was dubious about the judge before Trump picked him, arguing privately that his long paper trail in the George W. Bush White House would prove problematic. McConnell is close to White House Counsel Don McGahn, a major figure in Trump’s judicial nomination strategy. Could McConnell get Trump to nominate someone else? Remember, the White House has likely already vetted other candidates.
What do the Republicans on the Senate Judiciary Committee, particularly Sens. Ben Sasse of Nebraska and Jeff Flake of Arizona, do? The Senate Judiciary Committee has a 11-10 Republican majority. So one Republican refusing to back Kavanaugh would at least briefly stall the nomination. Flake and Sasse are regular Trump critics. The Arizona senator has already indicated that he is no longer comfortable backing Kavanaugh — at least for now — and wants a scheduled committee vote on Sept. 20 delayed. That is big. McConnell could still bring the nomination to the full Senate if it fails in the Judiciary Committee. But if Flake is a “no,” I think that might have a real impact on other potential swing senators in this process. Speaking of swing senators ….
What do the red-state Democrats do? Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voted for Neil Gorsuch’s confirmation to the high court last year. They are up for reelection this fall in fairly conservative states. I had assumed they were likely to back Kavanaugh. Now, I’m not so sure. Doug Jones of Alabama, who is in a very conservative state but not up for reelection until 2020, has already said that the Kavanaugh vote should be delayed until a formal investigation is conducted. As I mentioned, asking for a formal investigation, because of the timing, is tantamount to opposing Kavanaugh. But calling for a full investigation (and then opposing the nomination if one is not completed) is a much easier stance for red-state Democrats than voting for a nominee accused of sexual misconduct or opposing him on policy grounds. I think Kavanaugh’s number of Democrats votes may be shrinking, unless he can convincingly dispute the allegations.
What do the moderate and/or iconoclastic Republicans do? Sens. Bob Corker, Susan Collins and Lisa Murkowski are not on the Judiciary Committee. But Collins and Murkowski are two crucial swing votes, part of a trio of senators who brought down the Obamacare repeal last year. Collins, up for reelection in 2020 in a blue state, was under tremendous pressure from the left in her state to oppose Kavanaugh even before Ford went public. At the same time, torpedoing a GOP Supreme Court nomination probably wouldn’t play well with the party base. It would increase her odds of being challenged in a GOP primary. Remember, an Alabama congresswoman nearly lost a primary this year in part because she was critical of Trump after the emergence of the Access Hollywood tape in 2016.
What do the Democrats do? The Democrats are taking the logical political step of calling for an investigation into Ford’s allegations and urging Republicans to slow down the confirmation process. I don’t think they have any other tools to stop this nomination. But if Democratic leaders can make sure that all 49 of their members, including those in red states, commit to opposing Kavanaugh unless there is a real investigation of Ford’s charges, that will ramp up the pressure on Republicans, in particular Collins and Murkowski.