The Kavanaugh Nomination Controversy

The past few days have given rise to a Supreme Court battle like nothing the country has experienced since the Anita Hill-Clarence Thomas hearings in 1991.

Only a week ago Brett Kavanaugh’s confirmation seemed virtually certain. But then on Sunday the Washington Post published Dr. Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her 36 years ago during a high school party. Kavanaugh’s adamant denial of the accusation has left us with an extraordinary public confrontation between the professor and the judge.   

The situation is so fluid no one knows how it will end. Clearly Republicans face significant risks, especially with a momentous midterm election just 45 days away. But even if the Kavanaugh nomination implodes and leads to political disaster for the GOP on November 6, Senate Republicans may still have one more card to play.

Kavanaugh and the Blue Wave

Even before the Kavanaugh controversy, Republicans seemed likely to lose their House majority in a blue wave. FiveThirtyEight currently gives Democrats an 80% chance of winning control of the House. Although the Republican Senate majority appears safe for the moment--FiveThirtyEight only gives the Democrats a 32% chance of winning Senate control--the Senate race polling data largely predates the extraordinary events of this week.

Republicans have reason to worry. By any measure, Kavanaugh’s poll numbers look ominous for the incumbent party. According to the NBC News/Wall Street Journal poll, only 34% of Americans support Kavanaugh’s nomination. He is now one of the most unpopular Supreme Court nominees in history. Making matters worse for the Republicans, the national uproar over Ford’s accusation has strengthened the Democrats’ already huge 25-point lead among female voters nationwide. Polls released yesterday suggest the nomination controversy is even dividing conservatives along gender lines.

Of course, if we learned anything from the 2016 election, it is that political predictions in this volatile and polarized era are often unreliable. In 2016 FiveThirtyEight gave Hillary Clinton a 71% chance of winning the presidential election and the New York Times Upshot forecasters placed Clinton’s chances at 85%. We all know how that election turned out.

The Worst Case Scenario

But what if the worst case scenario materializes for the Trump White House? What if Kavanaugh’s nomination falls apart and a public backlash against the Republicans’ handling of the Ford allegation results in Democrats winning control of the Senate on November 6? In that scenario, Senate Democrats could block all future Trump nominees to the Supreme Court (as well as the lower federal courts) for the remainder of the president’s term, beginning with the new Congress on January 3, 2019. 

The critical question would then become whether there is enough time for Senate Republicans to confirm a new nominee before the 116th Congress is seated in January.  The current legislative calendar calls for the Senate to be in session for only 19 days between the November 6 midterm elections and the New Year’s recess. Under normal circumstances, that would not be enough time to conduct background checks, hold hearings, and confirm a new nominee before the end of the year.

But these are far from normal circumstances. The Merrick Garland episode in 2016 snuffed out whatever remaining commitment there was to preserving Senate traditions, customs, and norms. The Senate has become a political version of Game of Thrones in which each party looks out for its own naked self-interests and nothing else.

Even in a less polarized era, the exceptionally high stakes of this nomination would inevitably set off political fireworks. With the Supreme Court currently divided between 4 liberals and 4 conservatives, the justice who succeeds Anthony Kennedy could change the ideological balance of the Court for decades to come.

A Midnight Appointment?

Therefore, in light of the enormous stakes and the ferocious political and ideological climate that prevails in Washington, one must assume a lame-duck GOP Senate would take whatever measures are necessary to nominate, vet, and confirm a replacement for Kavanaugh before 2018 comes to a close.

As it happens, history provides the Republicans with a precedent (albeit a highly controversial one) they could invoke: the Midnight Appointments of 1801. After John Adams lost his reelection bid to Thomas Jefferson in 1800, Adams nominated one of Jefferson’s archenemies, John Marshall, as chief justice of the Supreme Court. The nomination and confirmation process moved at warp speed. Adams nominated Marshall on January 20, 1801, the Senate confirmed him on January 27, and Marshall took his seat as chief justice on February 4. In addition Adams appointed 16 judges to the lower federal courts in the final month of his presidency. On March 4, with Federalists entrenched throughout the federal judiciary, Chief Justice Marshall swore in Thomas Jefferson as the third president of the United States. “The Federalists have retired into the judiciary as a stronghold,” Jefferson privately lamented.

The one-week time frame President Adams and the lame-duck Federalist Senate used to confirm Marshall in 1801 might be a tad ambitious in 2018. But it does offer a rough outline of the approach a lame-duck Republican Senate could use in the event that Kavanaugh’s nomination implodes and Democrats win 51 Senate seats on November 6.

Justice Barrett?

If Donald Trump ultimately needs to come up with an emergency replacement for Brett Kavanaugh, who might he select?

The name that immediately springs to mind is Amy Coney Barrett, a judge on the 7th Circuit Court of Appeals. She was one of the finalists for the Kennedy seat this summer and it’s safe to assume she is every bit as conservative as Kavanaugh. Nominating Judge Barrett would also make obvious political sense under the circumstances. Her appointment would raise the current number of female justices on the Court to four, which would be an all-time record.

Accordingly, if Brett Kavanaugh’s nomination collapses in the days ahead, Judge Barrett may want to keep her schedule for November and December quite flexible.  

Comments

[anon]

One is sure the Democrats would find something to use against Barrett.

Yesterday, a Senator pledged that Democrats will, if Kav is confirmed and the Dems obtain the "gavel," continue to "investigate" the claims against Kav (for what reason, one wonders, as most Democrats have declared that the accusations are true), presumably for the purpose of impeachment.

Indeed, if one "believes" the "accusations," then there is no point in any investigation or hearings. The "accusations" are unclear and unstated publicly by the accuser, but the "belief" of all those have declared their "belief" abides: There is faith for these persons that whatever the "accusations" may actually be, the "accusations" are, without more, true.

Thus, for legal scholars, the issue is clear: is it appropriate to declare "accusations" true ("I believe her"), and should investigations and hearings and the like accordingly be unnecessary (at least, when the accused is a republican, white man)? Or, should we conduct a "show trial" where all the Democratic members of the jury have declared the "accused" guilty before the trial begins? Is this the conduct most consistent with a legal scholar's concept of justice? Is this what a legal historian has learned from history is the appropriate way to handle such matters?

These are the issues, IMHO, that the article above might have taken on ... but, instead, is it not much more satisfying to dream about the day when Kav will "implode" and his life will be ruined?

Isn't that much more fun?

[anon]

Kirsten Gillibrand‏ @SenGillibrand · Sep 19

Below, copied tweets from the above account:

“Denying Dr. Ford an FBI investigation is silencing her. Forcing her into a sham hearing is silencing her. And pushing through Brett Kavanaugh’s confirmation is silencing her.”

"The fundamental questions we must answer right now:

Do we value women?
Do we believe women?
Do we give them the opportunity to tell their story? To be heard?
Will we ensure they get the justice they deserve?

We must fight to be a country that answers, “Yes,” every time."

"I believe Dr. Christine Blasey Ford.

She’s not asking for extraordinary measures; she’s asking for basic fairness.

I hope that every woman in America is paying close attention to what is happening in the U.S. Senate right now."

[Glad Gilibrand is my Senator]

Relax with your pearl clutching anon. Even if Kavanaugh is blocked, there will be plenty of so called "liberal" law professors or other elite bar members (Chua, Katyal, etc) ready to shill in the Times, Post and WSJ saying just how smart, charming and nice of a carpool-parent or great of a boss the replacement nominee was to their well-credntialed child when the child was a law clerk for the nominee, so the rest of us should shut up. Sure organizing a labor union might be more difficult for you blue collar plebs, and while I may be as equally upset about Chevron Deference going away (but I'll live, since it won't impact either my family or me), but you should've see his serve in Nantucket!!

[anon]

ON the chance that GGIMS isn't Sy, Carswell, Scott, Athlete, Brett, etc., et al., it is noted:

"wow. you really put me in my place."

ALso noted, you forgot to mention Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University, who didn't base his support of the Kav nomination on any of the irrelevancies you cite, at least insofar as I heard his rationales. Perhaps you didn't forget to mention him.

[anymouse]

Gillibrand‏, now their is a giant of the Senate.

LOLZ.

[Leo]

So this is the playbook. At the eleventh hour, pull out some accusation that goes back decades and cannot be proven or unproven and use it to try to destroy someone.

I have no idea who is telling the truth. Only two people and maybe were so drunk, even they don’t. I reserve judgment until more comes out, if there is more to come out.

Regardless of your politics, I would hope most are seriously concerned about the breakdown of our system. Seems the ends justifies the means is all that matters.

Dems remember you will be back in power again and your nominees will be vulnerable to the same tactics. Who in their right mind would become a nominee for anything or a priest for that matters.

[ObviouslyAnon]

I think you overestimate the chances this will implode. The Senate Republicans remain furious about how this was handled by the Democrats - even if you say turnabout is fair play after Garland they won't take this lightly. And beware of reports that the person making these charges will show up on Wednesday - she seems to think that the Senate offer was another negotiating step, not a final offer. I continue to think that she'll insist on her terms for Wednesday (testifying second, no one except Senators) and the Senate will refuse, leading to a hearing where Kavanaugh testifies without her, and is then voted out of committee along a party line vote. The action will then move to the Senate floor, where presumably the Democrats will set up some sort of event to televise these accusations, and the question will become how a half-dozen Senators will vote.

[Brett Kavanaugh Macho Macho Man Association of America]

It's real simple. A normal guy, when he finds a girl he likes, he asks for her phone number. He doesn't rape her. The only reason this guy got anywhere is because he is an aggressive asshole. He has a violent, dark soul.

[Brett Kavanaugh Macho Macho Man Association of America]

One more thing, In my jurisdiction, he is guilty of child sex abuse. The evidentiary coberation is the outcry to an independent therapist years ago. Almost like a VSI.

[A Believer in the Goodness of Americans who won’t allow this person to become a Supreme Court judge]

Where is the FBI? They can verify that the ink used on these calendars are from 1982 or whenever. I have no doubt the “tits and clits” club were able to find some calendars in their parents or grandparents’ attics. Then let the FBI compare the handwriting to handwriting that is from school reports and see if this same. We have already found that
this boys club (the one Kavanaugh has told to lie to their wives about what they were doing — FBI, what did they do that was important to conceal from their wives? They have met for many nights, according to sources, to help their bud out, was one of them his bud in the group caught on video stating “no is yes and yes is anal.” Aren’t these wonderful findings for his daughters to find out, which they will. And who knows what else. Then since we have discovered he is a liar, aren’t the Republicans on this committee afraid that his answers are lies and once he gets the cushy, lifetime job of Supreme Court Judge, he will vote quite differently. Justice Warren, anyone? Oh, they voted for Clarence Thomas knowing — how in the world could they not — he had sexually abused woman and look what a blumbering, non contributor he is. I don’t blame him for keeping his mouth shut.

Please, FBI, examine these calendars and handwriting. This man recalled nothing significant that could hurt him in these hearing and at the last moment he is expecting us to believe a 17 year old (which people are saying he was so young and immature at this time and he’s a changed man and mature now and out behind childish ways) KEPT a calendar of his activities. And, if he did, he was smart enough not to write “going to yet another party where I will be so drunk I cannot be held accountable.” This man better hope his daughter doesn’t ever run into a “mini me” because, as we all know, we sure never told our parents that we went to a party at 15 and drank alcohol and were around boys who were — his words — hard drinkers.

[anon]

As usual, "progressives" are their own best representatives.