In a perfect world, the showdown this week over Supreme Court nominee Brett Kavanaugh would focus only on the credibility of accusations of sexual assault against him, which he has denied. But the outcome will swing at least as much on the politics of the situation.
In the perverse world of Washington, Republicans are likely to lose politically if their nominee survives. If they cut their losses, however, and President Donald Trump quickly picks a replacement, probably Judge Amy Coney Barrett, that would become a rallying cause for Republicans in November.
Kavanaugh and one of his accusers, California college professor Christine Blasey Ford, are slated to testify on Thursday before the Senate Judiciary Committee about allegations by Ford that he assaulted her at a party while both were high school students in the 1980s. Over the weekend, the New Yorker magazine reported a second accusation against Kavanaugh by a woman who said he exposed himself to her in a drunken encounter in a Yale dorm room later in the 1980s.
Unless the hearings and subsequent information clearly undercuts the charges, Kavanaugh’s nomination is in deep trouble. Polls show increasing public skepticism about confirming the U.S. Court of Appeals judge.
Thus, if Republicans barely confirm him on a partisan vote, it probably would become a political liability in the midterm elections on Nov. 6, compounding their existing problems with female voters.
A decision to dump Kavanaugh, who insists that he won’t withdraw, would rest with Trump and Senate Republican leader Mitch McConnell, whose only concern is protecting his majority. Although McConnell promised conservatives last week that Kavanaugh would be confirmed, he’ll drop him in a moment if it’s politically advantageous.
Then Republicans would insist that Trump reassure conservatives by naming a replacement quickly. The front-runner would be Barrett, a conservative former Notre Dame law professor and clerk to the late Supreme Court Justice Antonin Scalia. She was confirmed for the U.S. Court of Appeals for the Seventh Circuit last year on a largely party line vote.
Here’s where the politics could turn out to the Republicans’ advantage.
There would not be time to act on confirmation of Barrett before the election, but a pending nomination fight is likely to energize Republicans who might otherwise stay home in November. Barrett also would rally the Democratic ranks against her, but these highly motivated voters don’t need an extra incentive to go to the polls.
While Barrett’s pending confirmation fight might help Republicans in the election, they’d face extra barriers getting her confirmed afterward. Her staunchly anti-abortion views might be too much for a couple of more-or-less pro-choice Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska. And the pressure on Democratic Senators from conservative states to confirm a conservative court nominee would diminish after the midterms.
If Democrats should win a majority in the Senate, still improbable at this stage, a lame-duck session might be the Republicans’ last chance to confirm a Trump nominee.
McConnell’s decision in 2016 to block a vote on President Barack Obama’s nomination of Judge Merrick Garland to a Supreme Court vacancy could come back to haunt him. With Democrats still bitter over that unprecedented move, it’s not a reach to envision them sitting on any Supreme Court nominee for the remainder of the Trump term.
However it plays out, there’s one big loser: the Supreme Court.
Albert R. Hunt is a Bloomberg Opinion columnist covering politics and policy. He was the executive editor of Bloomberg News, before which he was a reporter, bureau chief and executive Washington editor at the Wall Street Journal.