The Political Stakes in the Kavanaugh Nomination

Thinking about the political calculus.

The political calculus at this point appears to go as follows.  The Democrats hope that filling the vacant SCOTUS seat can be delayed until after the election and that they could then win control of the Senate.  This would likely result in an eight justice court until the next election at least.  The Republicans want the seat filled by October 1, when the Court starts its new session or as close thereto as is possible.  (I don’t think it is possible to meet that deadline at this point, but they can still get close).

Now, the Democratic hopes are a combination of improbabilities.  Even if Kavanaugh’s nomination is scuttled, there is still time for Trump to nominate, and for the Senate to confirm, a new Justice before the constitutional clock runs out (although the longer they fight the Kavanaugh fight, the shorter that clock gets).  And, even if the clock runs out, the odds remain high that the Republicans retain control of the Senate after the mid-terms (although perhaps with an even thinner margin).

Note that Kavanaugh was was nominated on July 9th, i.e., roughly two and half months ago.  There is currently over three months before the new congress is sworn in, although just over a month until the elections.

The Republicans clearly just want this over with.  They want Kavanaugh on the Court as soon as possible so that they can enjoy a solid five seat conservative majority. They also appear to be digging in over the the issue of sunk costs into the Kavanaugh, often arguing as if he is the only option they have.

To be honest, I am not sure that the smart political play would not have been for Trump to withdraw on the notion that the position is too important to be tainted by these allegations.  From a GOP POV the seat does not have to be occupied by any particular person, just by someone who is of the appropriate ideological persuasion. There is a literal list of such persons in the President’s possession.

Meanwhile, the politics of this are interesting.  Note that a Fox New Poll shows a clear majority in opposition to Kavanaugh:

Currently, 40 percent of voters would confirm Kavanaugh, while 50 percent oppose him, according to a Fox News poll.  Last month, views split 45-46 percent (August 19-21).

As with all things related to national politics, the poll is as much a reflection of prevailing views on Trump as they are about Kavanaugh.  It is worth underscoring that Kavanaugh was polling poorly even before the allegations by Ford were made public.

A key political question for the Republicans as they go into the mid-terms:  while placing Kavanaugh on the bench will please Republicans, will it not further motivate Democrats, especially in all those close Senate contests (especially in the context #MeToo/Year of the Woman II)?

Lost in all of this is that we are talking about 1/9th of an extremely powerful institution–which is actually more important than the immediate calendar (and why we should do our best to make sure these allegations have been thoroughly addressed).

In terms of the stakes for Kavanaugh himself and the GOP, let’s not forget:

  1. Kavanaugh’s punishment for not getting confirmed will be to continue a life-time appointment to the DC Circuit Court of Appeals. (Contra Senator Graham, the stakes are not ruining Kavanaugh’s life).
  2. The President still has the power to appoint someone else, and has a Republican majority in the Senate until the beginning of 2019, and likely after that as well.

 

 

FILED UNDER: Law and the Courts, Supreme Court
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James Joyner says:

    I think this is correct.

    My only quibble is that, while Graham’s statement is overwrought, I agree with him that being rejected for a Supreme Court seat that he was a shoe-in to hold just a week ago on the basis of being wrongfully accused of a shameful crime would be rather devastating to Kavanaugh. While it wouldn’t “ruin” his life, the unfairness of it would not only gnaw at him for the rest of his days but his reputation is already forever tarnished.

    Of course, if he’s actually guilty of the accusations, he deserves all that and more. But I don’t think we’re ever going to know that.

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  2. @James Joyner: That’s not unfair, and I do get that. I just think that, on balance, the conversation is overly focused on the notion that Kavanaugh has some right to the seat (or that not getting it is some kind of punishment).

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  3. Mister Bluster says:

    I am not sure that the smart political play would not have been for Trump to withdraw on the notion…

    Double negatives can trip me up. Not that that they are never a good way to express a thought.
    What is fascinating to me about this phrase is that “smart political play” and “Trump” are in the same sentence.

  4. Teve says:

    Josh Barro

    Verified account

    @jbarro
    2h2 hours ago
    More
    Trump at the head of the party not only means the party can’t jettison the guilty; it also can’t credibly defend the innocent.

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  5. James Joyner says:

    @Steven L. Taylor: Agreed. While I disagree with Cass Sunstein et al insofar as they argue it would be right to reject Kavanaugh if one thought there was only a 30% chance that he did what he’s accused of, it’s true that, had these allegations come out when his name was merely being floated as a possible nominee, I would have advised picking someone else. Still, while I get that a lifetime appointment to SCOTUS is more important than one man’s fate, the fact that Kavanaugh has gotten this far in the process naturally turns this into a debate about what’s fair to him.

  6. Teve says:

    It is kinda hilarious that with women running more than ever and more fired up this year than ever, the GOP is going into the election visibly doing everything they can to ignore a claim of sexual assault and protect a privileged white man’s promotion.

  7. @James Joyner:

    the fact that Kavanaugh has gotten this far in the process naturally turns this into a debate about what’s fair to him.

    I honestly think this is the wrong way to think about it. He is a job candidate for a major position, he is not entitled to anything. I think we turn this into a drama about the nominee more than is appropriate.

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  8. This all reminds me of the impatience we all show when there is a close election and we want to know now who the winner is instead of wanting the right outcome (I have been guilty of this myself, but of late have been mindful that my desire to know the end of the story is not worth a wrong outcome). I think we get caught up the narrative (and the winning and the losing) and lose sight of the overall goals (or, what they goals should be).

  9. Michael Reynolds says:

    @James Joyner:

    While it wouldn’t “ruin” his life, the unfairness of it would not only gnaw at him for the rest of his days but his reputation is already forever tarnished.

    Absolutely. Which is why he should be demanding an FBI investigation. And yet, he’s not, while the accuser is.

    Huh. Funny, that.

    Now, if he was a poor black man, or even a poor white man, I could understand an innate fear of the FBI. But a wealthy white man with a law degree and a million lawyer pals? No. Sorry, the FBI does not have a record of maliciously attacking rich white guys. If Kavanaugh has nothing to fear, why is he acting as if he did? Same question to Donald Trump.

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  10. Teve says:

    OT: let’s have a thread about how Beto O’Rourke will be the 46th Prez-o-dent. Which is a Science Fact.

  11. Teve says:

    OT: Trump Chump Jason Miller just got his ass fired by CNN because it came out he slipped a woman he impregnated drugs that caused her to have an abortion.

    #MAGA!

  12. Modulo Myself says:

    What really gets me about how carefully we have to proceed re: ruining a guy’s chances to be on the SC is that we’re talking about behavior of privileged prep school kids. These kids were out drinking and smoking weed, and it was just kids being kids. Meanwhile, their parents were running a government that was going after poor black kids for doing the exact same things. That’s actual injustice and unfairness.

    Speaks volumes about Kavanaugh’s character in relation to Ford’s. From what I’ve read, she wanted to be as far away as possible from that world. He wanted to be in its heart.

  13. @MBunge: Any comments that contain personal attacks on authors or commenters will be deleted.

  14. SC_Birdflyte says:

    In my observations of human behavior, I’ve come to the conclusion that there are three appetites that may grow, rather than diminish, as they are fulfilled: wealth, power, and fame. Regardless of the outcome of the Ford accusations, Kavanaugh’s life has been just another tale of those who born on third base who think they hit a triple (h/t Anne Richards). He’s already had years to lap at the trough of privilege. It’s hardly surprising that he thinks (as do others similarly situated) that this appointment is now an entitlement.

  15. Just nutha ignint cracker says:

    Rats! I missed Bunge’s comment. I usually don’t read them–or most of the time even start–but the reactions to them are often interesting in the “going to NASCAR/indy wrestling to see the crashes/really sick bumps” sense.

    Still, it’s probably better that I don’t gratify my more prurient interests, so I commend Dr. Taylor for his swift and wise decision.

  16. @Just nutha ignint cracker: I have reached my limit on his nonsense.

  17. Lounsbury says:

    Abstractly, it would rather seem the ideal political outcome for the opposition – as there is no great chance of them blocking a Republican nominee, is to have a well-fought opposition to charge up their side, damage their opposition with women voters and pump up the disgusted with Trump vulgarity vote for the mid-terms. Actually blocking the nomination before the mid-term elections really only probably results in a bump to the Trump supporting vote via mobilisation.

    A smarter political strategy for the Trump administration would have been to withdraw the nomination and put forward another nominee, and thus get the double benefit of motivation for their voters and a less problematic nominee.

  18. Michael Reynolds says:

    How about when Michael Reynolds explicitly threatened me that I might have problems getting a job in the future because I don’t curse Donald Trump with every breath?

    I “threatened” you? Do I know your name? No. Where you live? No. Is there any chance that I’ll end up in a position to consider your employment? No. A prediction is not a threat. I predict you’ll die some day. That is not a death threat, snowflake.

    over one non-credible accusation

    You have no basis for assuming it is non-credible. Rather the contrary given that there is no conceivable benefit to Dr. Ford, quite the contrary as your fellow culties doxx and threaten her. And SHE asked for the FBI. Kavanaugh rejects an investigation. The accusation is not proven, but it is perfectly credible.

    Do you think tens of millions of people across the country are just going to forget about it?

    Well, gee, I don’t know. They seem to have forgotten that Mexico was going to pay for the wall, and Trump would hire the best people, and his tax cut wouldn’t be for the rich, and he had a replacement ready to go for Obamacare and on and on and on. So yeah, I can believe your cult pals would forget because they aren’t very smart. But will there be seething resentment? There already is. Resentment is why you put a racist, misogynist piece of sht in the White House. We’re all sick of your butthurt.

    Fragile white man syndrome. Christ, you wouldn’t survive a week as a black man in this country.

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  19. Michael Reynolds says:

    @Lounsbury:

    A smarter political strategy for the Trump administration would have been to withdraw the nomination and put forward another nominee, and thus get the double benefit of motivation for their voters and a less problematic nominee.

    You’ve probably noticed this but Trump and his minions aren’t very smart.

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  20. @MBunge:

    Just stay out of my threads.

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  21. Joe says:

    @MBunge:

    Like so many here and elsewhere, you assert that Dr. Blasey “has no evidence.” As a legal matter, that’s just wrong. Her personal testimony IS evidence, particularly when she gives it under oath. Whether it is good evidence or enough evidence is an entirely different question. Concurrent notes would be evidence as would video tape, but their absence is not an absence of evidence. Her statement, nevertheless, is evidence just like Judge Cavaugh’s denials, which I expect he, too, will give under oath and just like the denials of others Dr. Blasey recalls being there. The issue here is not whether there is evidence, but the weight of that evidence given by the parties. That weight will be impacted by credibility and plausibility. Add to that the question of burden of proof – how high and who bears. I don’t doubt that many people will analyze that differently, but there is evidence.

    If Judge Cavanaugh is not confirmed, I will await, Steven and James the impending but-for-fate article about the first Appellate Panels that Judges Cavanaugh and Garland share.

  22. george says:

    @Michael Reynolds:

    Yup, the only fear an innocent Kavanaugh could have about an investigation is that it would drag on so long that the Dem’s would regain the Senate before he was confirmed. And if an investigation dragged on with no further evidence against him than Ford’s accusation most people would assume there was no further evidence, and he’d be home free.

    If innocent he should be begging for an FBI investigation at this point, and asking for it to go forward immediately and at full speed.

  23. Kathy says:

    @Just nutha ignint cracker:

    Rats! I missed Bunge’s comment.

    But they are so worth not reading!

    I don’t read them. I just vote them down.

  24. Andre Kenji de Sousa says:

    There are rumors that Ronan Farrow and Jane Mayer are about to publish something about Kavanaugh. If these rumors are true, sorry, game over, and everyone that said on the record that he would be confirmed(Among them I) would be proven wrong.

  25. Andre Kenji de Sousa says:
  26. Modulo Myself says:

    @Andre Kenji de Sousa:

    Sure he exposed himself to a woman but was it in his calendar?

    The GOP knew about this allegation for a week. A fucking week.

  27. CSK says:

    @Andre Kenji de Sousa:

    Beat me to it, Andre.