The recent allegation against Supreme Court nominee Brett Kavanaugh has injected new venom and uncertainty into an already contentious nomination process. To delve into the veracity of the claims put forward by Christine Blasey Fordwould yield no fruit; whether or not the alleged assault occurred, and whether or not one could prove something unprovable is immaterial to the political ramifications in the midterms. No unanimously acceptable outcome is possible for the opposing parties. This debacle is inherently political, so what plays out in the following days and weeks will revolve around how this affects the November elections. The decisions made in the aftermath of the Ford allegation are political chess moves.
Judge Kavanaugh is a nominee selected from a list compiled by the Federalist Society, an organization of legal minds devoted to promoting originalist, conservative jurists. Their stamp of approval is a litmus test for many Republican appointees. Though he is imminently qualified by their standards, Senate Majority Leader McConnell apparently warned against his selection in July.His history working for the George W. Bush presidency and as an aide to Ken Starr meant the prospect of “millions” of pages to pore over and relitigating “Bush-era controversies.” This did occur, as Senator Spartacus Booker from New Jerseyopted to release documents against the protests of Republicans on the Senate Judiciary Committee. Most of the documents revealed from Kavanaugh’s previous jobs were innocuous, but, as McConnell feared, they provided fodder for Democrats intent on delaying the process while also offering an opportunity for presidential hopefuls to score points with their base.
A few Republican Senators can impede Kavanaugh’s confirmation. Retiring Senators Jeff Flake and Bob Corker have asked for Ford to testify before the Judiciary Committee. Kavanaugh and Ford are slated to testify, but Kavanaugh’s defenders, both in reality and on television, seem to be offering mutually exclusive arguments. One line of defense states that the event never happened; Kavanaugh himself denied they did. Another argument is that the allegations describe “horse play,”or so long ago as to be irrelevant. It may be one of the two, but it can’t be both. The latter argument seems at least more feasible, given that Ford spoke about the event in 2012, long before Kavanaugh’s nomination. Furthermore, I personally find it hard to believe that a single woman would subject herself and her family to the level of scrutiny and disparagement they currently face. Perhaps some would find this nomination as an existential crisis, but I think that’s a stretch, especially considering the scores of ideological facsimiles that are eager to take Kavanaugh’s place.
Democrats see this as a Hail Mary attempt to deny a lifetime appointment to the Supreme Court. Front of mind for many is the perceived theft of Merrick Garland’s seat, whom President Obama nominated late in his presidency. Leader McConnell successfully delayed Garland’s confirmation, not on the basis of his merits, but on the basis of his appointer. The gambit paid off and Trump was able to install Neil Gorsuch, a reliably conservative justice. Though it is hard, if not impossible, to point to a single factor which carried Trump to the Oval Office, his willingness to appoint conservative justices certainly helped retain Republican voters who were otherwise put off by Trump and who may have stayed home in 2016.
Now, Democrats are making a similar gamble. Many balked at the prospect of a Trump presidency and are keenly aware of the significance the 2018 midterms represent. Democrats figure that holding open the seat will energize their voters in November. The GOP historically outperforms Democrats in non-presidential election years, so it is possible (if not likely, given recent special election and primary data) that Democrats will flock to their voting precincts this Fall. At least in the near future, there is no political downside for Democrats to hold the seat open. November projections show that Democrats, primarily due to the staggered design of senate elections, have little room to gain seats in the upper chamber. Many incumbents will be in tight battles to retain their seats in states that Trump won by healthy margins in 2016. Democratic energy in reaction to Trump and this Supreme Court seat could get them across the finish line; moreover, a “blue wave” could even put solidly red states like Texas and Tennessee into play.
With that considered, I think there are four possible scenarios for this nomination:
- Kavanaugh gets confirmed;
- Kavanaugh remains the nominee but his confirmation is delayed past the midterms;
- Kavanaugh’s nomination is rescinded in favor of a different candidate who is confirmed; or,
- Kavanaugh’s nomination is rescinded in favor of a different candidate whose confirmation is delayed past the midterms.
Scenario I: If no further evidence or other accusations arise, I think Republicans will likely move forward with his confirmation and approve Kavanaugh. Senators Flake and Corker, in this scenario, will fall in line and vote for Kavanaugh. Absent these allegations, they would have been locks as yea votes. The wild cards, now as always, are Murkowski and Collins. Their votes hinge on a) if they believe Roe v. Wade will be overturned if he’s appointed, and, perhaps more importantly, b) if that matters to them at all, or if their stance on reproductive rights were, heretofore, political posturing for moderate constituents.
Scenario 2: If Kavanaugh’s confirmation is held up through the midterms because of the allegation against him, it will be because of some combination of Flake, Corker, Murkowski and Collins. The benefit for Democrats is twofold: Democratic incumbents with tough reelections can foist the blame onto rogue Republicans without having to make a potentially election-losing vote on Kavanaugh’s confirmation. It also presents an opportunity to fire up Democratic voters. Whether realistic or not, they may see it as an opportunity to hold open the Supreme Court seat indefinitely. The counter argument here is that it could just as likely turn out Republicans who are united behind the goal of a conservative judiciary. Ultimately, both sides will do everything they can to rile up their bases to get out the vote.
Scenario 3: This option seems like a good middle ground for Republicans, but it runs the risk of accepting defeat in the Kavanaugh debacle, an option many Republicans do not want to exercise. Replacing Kavanaugh with a different candidate would go far in resetting the conversation, and a compelling choice might be Judge Amy Barrett. A female nominee would be far less likely to have accusations of sexual assault pop up, and it would also help from a public relations perspective for a party with high profile sexual assault allegationsto offer a qualified woman for the Supreme Court seat. The rub with Judge Barrett is that she could be a tough sell for Murkowski and Collins with regard to Roe v. Wade. For Democrats, it would be far more difficult to paint the GOP as anti-woman during the midterms, all the while holding up a woman’s nomination to the Supreme Court. It is hard to imagine that, if she were chosen, the senate would have time to restart the entire process and hold a vote before November.
Scenario 4: Finally, what I see as the worst case for Democrats: Judge Barrett is nominated but her confirmation is held up through November, as I mentioned above. Republicans would be able to tout their willingness both to rescind Kavanaugh and replace him with a qualified woman. This could upset some conservatives, but I don’t see it as being cause for them to stay home and allow Democrats to win. One possible effect of this scenario is that some GOP candidates might be able to capture back some of the all-important white suburban female voters whom the Trump presidency has alienated.
The allegations against Kavanaugh have thrown a wrench into what might have been a rather straightforward confirmation process. Of the scenarios I teased out above, I think it is most likely that Kavanaugh remains the nominee. Barring any revelations from upcoming testimony or other accusations, Republican senators will probably find Ford’s allegation against Kavanaugh either immaterial or unverifiable. However, I think the best choice for them is to replace Kavanaugh and offer Barrett as his replacement; she checks the boxes for conservative bona fides and somewhat mitigates the bad optics clouding Kavanaugh. In any case, neither party can know for sure which scenario will play best for them electorally. Democrats have no real power to hold up these nominations, so they’ll be banking on a huge turnout in November to capture back a seat or two in the senate.
I would be interested to hear what others think about the scenarios I presented and what the blowback from the Ford allegation portends for the midterm elections this November.
Kirk Kovach is a native North Carolinian interested in writing about politics, communication and culture.