White House Has No ‘Plan B’ If Kavanaugh Nomination Fails

The GOP has no alternative but to push forward with the Kavanaugh nomination, because they don't have a viable alternative at this point.

As I noted this morning, the White House has essentially given the F.B.I. carte blanche in connection with the reopened background investigation of Judge Brett Kavanaugh. This means, of course, not only that the Bureau has leave to look into all the allegations that have been made against Judge Kavanaugh by made by Dr. Christine Blasey Ford, Debbie Ramirez, and Julie Swetnick as well as parties that may have relevant information related to these charges. The only caveat to the expansion is that the Bureau must conclude its investigation by the end of this week, although it is unclear what happens if the Bureau comes back and says it needs more time to chase down leads, especially if that leads Senators like Jeff Flake and Lisa Murkowski to argue for an expanded delay.

Assuming the Bureau does complete its investigation in time, though, the question then becomes what impact, if any, this has on the process going forward. Most of the Senate’s Democrats, of course, have already made up their mind about Kavanaugh, as have most of the Senate Republicans. At this point, there are basically five Senators who will decide Kavanaugh’s fate, Jeff Flake, Lisa Murkowski, and Susan Collins on the Republican side and Joe Manchin and Heidi Heitkamp on the Democratic side. Essentially any three of these five Senators could sink Kavanaugh’s nomination if they believe the background check has uncovered information that makes his confirmation inappropriate, or if they aren’t satisfied that the investigation was sufficiently complete.

This is important because, as of today, we are a mere five weeks away from Election Day and many states have already begun the early and absentee voting process. However, this nomination proceeds it could end up having a significant impact on the outcome of those elections. If the nomination succeeds, it could end up energizing women voters and Democrats intent on punishing Republicans at the polls, though it could also energize the right by reminding voters of the importance of holding on to the Senate. If it fails, it could also end up energizing Republicans and Trump supporters angry at what they will no doubt see as the rejection of a qualified nominee, or it could end up energizing voters opposed to the nomination who would no doubt see defeating Kavanaugh as a victory over Trump and the Republicans. Because of that, the GOP is likely to push forward with the nomination unless it becomes so politically untenable that there is no other choice.

In that regard it’s worth noting that the White House essentially has no “Plan B” if Kavanaugh is defeated:

For the White House, it’s Brett Kavanaugh or bust. They have no Plan B and there’s not even discussion of one, according to five sources with direct knowledge of the sensitive internal White House talks.

What they’re saying: “He’s too big to fail now,” said a senior source involved in the confirmation process. “Our base, our voters, our side, people are so mad,” the source continued. “There’s nowhere to go. We’re gonna make them f—ing vote. [Joe] Manchin in West Virginia, in those red states. Joe Donnelly? He said he’s a no? Fine, we’ll see how that goes. There will be a vote on him [Kavanaugh]. … It will be a slugfest of a week.”

Show less
  • “There’s no time before the [midterm] election to put up a new person,” a White House official close to the process told me.

Why this matters: When Trump spoke to reporters on the South Lawn of the White House Saturday afternoon, he told them, “I don’t need a backup plan,” in case Kavanaugh’s nomination collapses.

Between the lines: That’s just as well, because the small team working to confirm Kavanaugh has not been looking for a backup candidate, let alone vetting one.

  • Sources close to the White House legal operation complained that even if they did want to rush through a new nominee, they couldn’t be sure any male nominee wouldn’t have what one called a “Kavanaugh problem.”
  • “You nominate any man and how do you guarantee … How do you vet for that?” said that source. “For an accusation that’s 36 years old? You can’t.”
  • There’s been plenty of speculation that, after the elections, Trump could put up a female judge such as Amy Coney Barrett, who was on his shortlist last time. But two sources involved at a senior level in Kavanaugh’s confirmation told me they worry Barrett might end up being “too conservative” for the pro-choice Republican senators Susan Collins and Lisa Murkowski.
  • All that speculation reflects the anger and tension filling the White House.

Even if the White House does have a “Plan B” it would, of course, be a mistake to discuss it publicly because that would potentially undermine support for Kavanaugh even among conservatives who might have preferred a more conservative nominee such as Barrett, who has only been on the Seventh Circuit Court of Appeals for eleven months. An additional risk, of course, is that the GOP ends up losing control of the Senate in November. In that case, the already difficult task of getting a nominee through the lame duck session could prove to be impossible:

If Kavanaugh is not confirmed, then the attention will turn to the campaign season. If Republicans retake the Senate, then Trump will obviously be able to appoint another judge to the Supreme Court. If Democrats win the Senate, however, they would presumably seek revenge for Merrick Garland and hold the seat open through the rest of Trump’s first term. Therefore, Republicans would have to confirm a nominee during the “lame duck” session between the Nov. 6th election and when the new Senate is sworn into office in early January.If Kavanaugh is not confirmed, then the attention will turn to the campaign season. If Republicans retake the Senate, then Trump will obviously be able to appoint another judge to the Supreme Court. If Democrats win the Senate, however, they would presumably seek revenge for Merrick Garland and hold the seat open through the rest of Trump’s first term. Therefore, Republicans would have to confirm a nominee during the “lame duck” session between the Nov. 6th election and when the new Senate is sworn into office in early January.

This, to me, would be a lot more difficult than it sounds. For Democrats to win control of the Senate, it would mean that Republicans would have been eviscerated. Under such conditions, even if McConnell wanted to, I’m not sure that he could convince fence-sitting senators such as Susan Collins to go along with the effort. Collins, to be clear, would be up for re-election in 2020 in a presidential election year. Already under significant pressure to vote “no,” she may buckle after witnessing a total slaughter. Furthermore, vulnerable red state Democrats, whose votes are now in play, would be off the hook after Nov. 6th, having likely survived. So it could be a tough sell.

McConnell is often treated as a legislative wizard, but much of that reputation has been earned from his ability to maintain party discipline when it came to blocking President Obama’s agenda when Republicans were in opposition. He has a much more mixed record when it comes to whipping votes to pass something, as evidenced, among other things, by the stunning failure to repeal and replace Obamacare.

Is it possible that Kavanaugh goes down, Trump appoints somebody new, and McConnell is able to race to confirm him or her by Jan. 1st, regardless of what happens in November? Sure, it’s possible. But it’s far from as automatic as many liberals are suggesting.

This comes from the generally conservative Philip Klein at the Washington Examiner and it strikes me that it’s basically spot on. Republicans will push forward with Kavanaugh because, for now, they don’t really have any better options and because there’s a risk they will lose the Senate in November. With that reality in front of them, don’t expect many Republicans to change their mind even if the renewed background investigation uncovers something truly damning.

Please follow and like us:
FILED UNDER: Campaign 2018, Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mikey says:

    Eh…I don’t buy it. Of course they have a plan B. Do you really think the Federalist Society doesn’t have an arm-long list of more-palatable Kavanaugh quasi-clones ready to go?

    Besides which, as you do point out, coming out with a plan B now would give the wobbly Republicans an out, and regardless of who else may be lined up to go, the party leadership wants Kavanaugh.

    16
  2. Daryl and his brother Darryl says:

    @Mikey:

    the party leadership wants Kavanaugh.

    I think originally Turtle Face told Dennison not to go with Kavanaugh.
    By now they are too far down the road…going to plan “B” would make them look like the incompetents they are.

    2
  3. Michael Reynolds says:

    With that reality in front of them, don’t expect many Republicans to change their mind even if the renewed background investigation uncovers something truly damning.

    At this point no rational person expects Republicans to have any relationship with the truth. Facts are irrelevant. It doesn’t matter to Republicans at all whether he’s a drunk, a molester or a serial killer, he’s white, he’s male, he’s belligerent and he’s a pathological liar – just like Trump. That is the GOP formula: white, male, filled with rage.

    20
  4. @Mikey:

    Of course they have a list, the point is that right now they don’t have a replacement immediately ready and no plan to get a confirmation vote through the Senate by the end of the year (especially if the GOP loses control of the Senate.)

    6
  5. Kathy says:

    @Mikey:

    Eh…I don’t buy it. Of course they have a plan B. Do you really think the Federalist Society doesn’t have an arm-long list of more-palatable Kavanaugh quasi-clones ready to go?

    No doubt the Federalist Society has a plan B (and C, and D, etc.). No doubt, also, the GOP leadership has one, or at least possible contingencies (possibly with some more egregious norm-breaking).

    But El Cheeto may not have one. He didn’t have one for what would happen if he didn’t lose the 2016 election, for instance. I mean, past throwing a tantrum.

    2
  6. Daryl and his brother Darryl says:

    A liar, a drunk, a partisan hack, a cry-baby, and an accused rapist go into a bar.
    The bartender says;
    Hey, Judge Kavanaugh…

    18
  7. James Pearce says:

    Trump could put up a female judge such as Amy Coney Barrett, who was on his shortlist last time. But two sources involved at a senior level in Kavanaugh’s confirmation told me they worry Barrett might end up being “too conservative” for the pro-choice Republican senators Susan Collins and Lisa Murkowski.

    After reading this, I put on my ruby slippers and clicked my heels three times saying, “Please put up Barrett, please put up Barrett, please put up Barrett.”

    Whether the next SC judge is going to be “too conservative” is exactly the debate we should be having.

    5
  8. KM says:

    Backing down now means admitting he was a poor choice. It also means he’s unfit for the post….. and unfortunately for them Kavanaugh’s gone and shown himself to be rather Trump-like. The rage, the entitlement, the conspiracy theories, the piss-poor attitude and behavior in public, the accusations – why is it enough to sink a SCOTUS appointment but not a sitting President? Why is it MAGA for Donald and not Brett?

    Kavanaugh’s too close for comfort if they have to explain him away. There’s no plan B because MAGA was supposed to cover this. But as some many have found out, Trump gets away with things normal people don’t. You’d think theyd have learned by now – the cult forgives the Leader his faults , not the peon.

    5
  9. Kathy says:

    @KM:

    Why is it MAGA for Donald and not Brett?

    Thus far it has been. and absent something like Judge Brett having paid for an abortion or something, I think he’ll be confirmed. I hope I’m wrong, I just don’t see any other outcome.

    If I’m wrong and he goes down, there are a few tricks McConnell could try, I suppose. One would be to nominate a judge who’s already been confirmed by the Senate, preferably with Democratic votes, and claim said judge doesn’t need another round of confirmation hearings. Then he schedules an empty committee vote, and a floor vote.

    That would be a hard sell, but I can see him trying it.

    2
  10. OzarkHillbilly says:

    @Daryl and his brother Darryl: That’s it, the Brothers Darryl have won the internets for the day. Shut it down boys, it’s all over but the crying.

    1
  11. MBunge says:

    Is the FBI looking into this?

    Mike

    [Edit — Link consolidated into comment due to formatting issues — DM]

    3
  12. OzarkHillbilly says:

    @TM01:

    You’re all pathetic.

    Always the projection…

    10
  13. Mister Bluster says:

    Off Topic Request for Information.

    When I click on Archives in the OTB Header and scroll down to Monthly former posts stop with June 2018. Where are the OTB posts from July 2018, August 2018 and September 2018?

  14. Daryl and his brother Darryl says:

    @TM01:
    @MBunge:
    Hey…if you guys believe Kavanaugh…have your daughter run into a frat and yell;

    “Who wants to play Devil’s Triangle???”

    Put your daughter’s ass where your mouth is…so to speak.

    9
  15. Quartered Safe Out Here says:

    For a Plan B, why not a recess appointment? If not Kav, why not Barrett? The 9th spot will be filled for the next year, decisions will be rendered, and best of all, the Trumpster gets to appoint someone without all that advise and consent Constitutional folderol.

  16. Grewgills says:

    I think it was Trevor Noah that said it best,

    The republicans are so anti-choice they don’t even have a plan b for this.

    8
  17. Monala says:

    @Mikey: I have heard it floated that Trump wants Kavanaugh because of K’s belief in presidential immunity. (Since Trump doesn’t really care about overturning Roe outside of pleasing his evangelical base). That’s why some other conservative judge can’t replace Kavanaugh in Trump’s mind, and the rest of the GOP go along because, as our hosts have noted, it’s his party now. I’m surprised this theory hasn’t gotten more attention.

    4
  18. @Mister Bluster:

    They show up for me.

  19. Teve says:

    @Grewgills: speaking of that I don’t think Roe will matter much. Abortion pills bought on the internet are going to be the way it’s done. Tech will have mooted the issue.

  20. Teve says:

    I give Ameros to the ACLU. I expect in the future I will also be giving Ameros to a fund which pays for Abortion pills for poor women in rural Jesustan.

    4
  21. Teve says:

    Deranged Conspiracy Conservatives like Rick Wiles are now claiming that Dr. Ford was Brainwashed by the CIA.

    2
  22. Daryl and his brother Darryl says:

    Dennison, today;

    “It’s a very scary time for young men in America when you can be guilty of something you may not be guilty of…you can be somebody that was perfect your entire life, and somebody could accuse you of something … and you’re automatically guilty,”

    I suspect he’s not talking about young men of color…who, you know, are subject of massive injustice. Of course Kaepernick started protesting that very thing….it being a scary time for young men. And Dennison told all his red-hats that it was a protest against the flag, or some happy horse-shit like that.

    4
  23. Kathy says:

    BTW, has anyone found who Anonymous is?

    1
  24. KM says:

    @Teve:
    Unfortunately that runs the risk of diluted or incorrect drugs just like any other online medicine. There’s a reason buying drugs from “Canada” isn’t legal other then “Big Pharma keeping the man down” or whatever. It could be mistropol, it could be aspirin or caked baby powder. You run the risk of buying something cut with something fatal as well. After all, what’s to stop some psycho wanting to punish women for having abortion by selling random laced pills that kill them for their “crime” mixed in with regular pills? Who are you going to complain to and who do you expect to regulate that? The death toll would skyrocket

    If they ban the drug officially (and they will), shipping it to the US will become troublesome and make drug dealers out of innocent people. Look how they treat weed and then think about how they’ll move the fervor of getting rid of Roe as “baby killers” to tracking down “baby-killing drug dealers” instead. Two of their favorite targets, now in one convenient package!!

    5
  25. Teve says:

    The president has long sold himself as a self-made billionaire, but a Times investigation found that he received at least $413 million in today’s dollars from his father’s real estate empire, much of it through tax dodges in the 1990s.

    By DAVID BARSTOW, SUSANNE CRAIG and RUSS BUETTNER

    Oct. 2, 2018
    President Trump participated in dubious tax schemes during the 1990s, including instances of outright fraud, that greatly increased the fortune he received from his parents, an investigation by The New York Times has found.

    not a surprise, but nice to see details.

    6
  26. Teve says:

    @KM: “Bought on the internet” doesn’t necessarily mean “bought from Shady Randos in Turkmenistan”. Can South Carolina stop a legal pharmacy in Yonkers from mailing you your drugs through the USPS, after you facetimed with a Planned Parenthood doctor? I mean maybe they can I just don’t know that to be a fact.

    1
  27. Teve says:

    @Teve: What’s amazing about this story is if you’re the NYT and you’re about to say “The President Committed Tax Fraud” you know 38 lawyers have studied every single piece of evidence behind that claim and said, “Yeah. This is solid.”

    4
  28. Mister Bluster says:

    @Doug Mataconis:..…they show up for me.

    I am assuming that you are clicking on the Archives link in the body of my inquiry post or this one.

    I see posts archived from January 2003 all the way to June 2018 but that’s it no July or August 2018.
    Also when I am on the OTB cover page where all new posts appear, when I scroll to the bottom I see Joyner’s Item Republican Favorability Inexplicably Jumps, Higher than Democrats’
    dated Sep 25th 2018. When I click on Read More Posts>> the next thing I see is Democrats Moving Up In Generic Ballot Polls Again (Mataconis) June 7, 2018

    Something is missing somewhere.

  29. An Interested Party says:

    Pity the poor white man…meanwhile, McConnell needs to be completely dismissed, considering he committed what looks a lot like treason

    3
  30. Tyrell says:

    Well I have a “plan B”: If Judge Kavanaugh does not make it, Trump should nominate a real conservative that would follow the US Constitution. The Democrats would look like fools to pull this kind of thing again.
    Plan C: come up with a new procedure for placing justices on the court. I would prefer direct election to a six year term.
    I also have a couple of other plans in formation to avoid this disaster.
    My favorite judges: Oliver Holmes, John Marshall, Thurgood Marshall, Sandra O’Conner, John Jay, John Parker* (Tar Heel), the irrepressible William Douglas, Kennesaw Mountain Landis, Judge Mathis, Judge Roy Bean, and Judge Proctor.
    *Judge Parker was one of the judges at the Nuremberg Trials.
    “How ’bout them Cowboys!”

    1
  31. HarvardLaw92 says:

    @Tyrell:

    You couldn’t coherently discuss the Constitution with a map and a team of 1L’s feeding you answers.

    Nice performance though, even if the schtick is starting to go stale

    10
  32. MBunge says:

    Yup. This is definitely a political/cultural movement of which you should all feel proud to be part. It couldn’t possibly all go horribly wrong like so many times before. Nope. That’s impossible. It’s all good from here on out.

    https://www.nytimes.com/2018/10/02/us/politics/ricin-pentagon-mail-poisoning.html

    Mike

    2
  33. OzarkHillbilly says:

    @Tyrell:

    Plan C: come up with a new procedure for placing justices on the court. I would prefer direct election to a six year term.

    DEAL!! Caveat: ALL (every dawg damn one of them) US citizens be allowed to vote.

    3
  34. Lit3Bolt says:

    @MBunge:

    Oh Trumpy lovey honey. You really don’t want to play the guilt by association game. Especially when the 1488 crowd is on your side.

    7
  35. Mikey says:

    @MBunge: Some nutter sent a poisoned package to the Pentagon. Good thing nobody got hurt or killed, like Heather Heyer in Charlottesville when a Trump supporter like you ran his car into a crowd of people.

    5
  36. Neil Hudelson says:

    @Tyrell:

    Well I have a “plan B”: If Judge Kavanaugh does not make it, Trump should nominate a real conservative that would follow the US Constitution. The Democrats would look like fools to pull this kind of thing again.

    Some of your finest work, Tyrell.

    4
  37. Moosebreath says:

    Meanwhile, the Head Deplorable shows how much he respects Dr. Ford:

    “Before the crowd Tuesday night in Southaven, Mississippi, Trump imitated Ford during her testimony, mocking her for not knowing the answers to questions such as how she had gotten to the high school party where she says Supreme Court nominee Brett Kavanaugh sexually assaulted her. “

    4
  38. An Interested Party says:

    @MBunge: You worthless piece of shit…you dare to suggest that criticisms of your lord and master lead to attempts to poison people in the government? I didn’t think you could go any lower than you already have but you prove daily just exactly how low you can go…pathetic fluffer…

  39. Gustopher says:

    @Tyrell:

    Well I have a “plan B”: If Judge Kavanaugh does not make it, Trump should nominate a real conservative that would follow the US Constitution. The Democrats would look like fools to pull this kind of thing again.

    Fun Fact: There are things in the constitution that are incompatible with one another, and lots of instances where one person exercising their rights would result in another person’s rights being harmed. The Supreme Court is there in large part to resolve these cases.

    So, two different justices can “follow the constitution” and end up with different results. The whole “impartial umpire calling balls and strikes” thing is a simplistic explanation for simple people.

    3
  40. gVOR08 says:

    @Kathy: Gawd. These recent Infrastructure Weeks are getting so busy I had to go, “What? Who’s “Anonymous”?” for a minute.

    4
  41. Daryl and his brother Darryl says:

    @One American:
    It’s your side that only deals in emotions. Look back at your comments.
    1st…your Dear Leader himself said that anyone under investigation by the FBI shouldn’t be President. That means that, at a very basic level, he shouldn’t be appointing a SC Justice.
    2nd…Kavanaugh has repeatedly lied during this process. Lindsey Graham has said someone that lies shouldn’t be a judge because you can’t trust his decisions.
    So don’t listen to me…listen to the fool you voted for and to Lindsey “Butters” Graham.
    But in the end you will only listen to your emotions, and you cannot reason with someone that comes to their opinions thru emotion.

    3
  42. KM says:

    @teve:

    can South Carolina stop a legal pharmacy in Yonkers from mailing you your drugs through the USPS, after you facetimed with a Planned Parenthood

    Absolutely. Think of it this way – can I order medicinal MJ from a doctor in CO and have it shipped to another state that doesn’t have the same laws? Can I legally bring it over state lines even if it was all legit at time of purchase? Even with a prescription, a state can intervene if you order it online when it’s illegal within its borders.

    People thinking the internet will save abortion post-Roe don’t realize it’s easier to classify a drug and ban / prevent it’s use then trying to get rid of abortion outright. Hell all they do is make it sched 1 and let the war on drugs machine kick in.

    2
  43. Kathy says:

    @gVOR08: It’s hard keeping up with so many scandals, isn’t it?