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.”
- “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.
