KAVANAUGH BATTLE: PERILS AND PAYBACK
Republicans may have to start all over again as time runs short before election
WASHINGTON – Brett Kavanaugh’s suddenly endangered Supreme Court nomination creates risks for Republicans seeking to take control of the high court and opportunities for Democrats to retaliate for being denied the same thing 21⁄2 years ago.
If Kavanaugh cannot withstand the accusation of sexual misconduct leveled by a college professor who said he molested her in high school, President Donald Trump and Republicans will have squandered what Democrats contended was a rushed effort to confirm the judge without a complete vetting of his record.
That would mean a return to square one: Trump chooses a new nominee, followed by nearly two months of FBI background checks, courtesy calls with senators and a confirmation hearing that almost certainly could not be held before Election Day, when Democrats have an outside shot at winning a Senate majority.
Even that scenario probably would
not be enough for Democrats to achieve their goal: preventing a conservative takeover of the Supreme Court. Republicans hold a 51-49 majority in the Senate. Even if Democrats are able to wrest control of the chamber in the elections Nov. 6, Republicans would still have an opportunity to confirm a high court nominee in the post-election “lameduck” session at the end of this year.
As the drama over Christine Blasey Ford’s accusation and Kavanaugh’s denial plays out:
❚ The Senate Judiciary Committee will hear from the 51-year-old California college professor, who said a drunken,
17-year-old Kavanaugh pinned her down at a party, groped her and covered her mouth when she tried to scream. The panel also will hear Kavanaugh’s side of the story at a public hearing
“There might be political cost to the Republicans in November if they appear to railroad it through.” Neal Devins William & Mary Law School
scheduled for Monday.
“If it takes a little delay, it will take a little delay,” Trump said Monday. “It shouldn’t certainly be very much.”
❚ Republicans could try to get Kavanaugh through the Senate within weeks after a truncated review of Ford’s accusations. That could haunt them at the polls and harm the court’s reputation.
“There might be political cost to the Republicans in November if they appear to railroad it through,” said Neal Devins, director of the Institute of Bill of Rights Law at William & Mary Law School.
❚ The White House could withdraw Kavanaugh’s nomination. In that case, he probably would remain a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
❚ Trump could select another nominee from his original list of 25 people, possibly a woman. The most prominent name is Amy Coney Barrett, a former Notre Dame law professor named to a federal appeals court judgeship last year and a finalist for the high court nomination in July.
❚ Most Supreme Court nominations take about 50 days, which brings us to Nov. 6 – Election Day. Before then, most members of Congress, including nearly one-third of the Senate, will be campaigning for re-election, making confirmation all but impossible.
❚ No matter which party wins a Senate majority, Republicans will wield the gavel until January, giving them time to confirm a second nominee. If Democrats win the majority, they would have an even greater incentive to stall or sidetrack the nomination until the new Congress begins.
“If Democrats win the Senate, they will scream bloody murder about the legitimacy of confirmation by a lameduck Congress,” Curt Levey, president of the conservative Committee for Justice, told Fox News. “But they also screamed bloody murder about the legitimacy of denying Supreme Court nominee Merrick Garland a hearing, and look how far that got them.”
❚ A protracted process, whether to confirm Kavanaugh or someone else, would leave the Supreme Court with eight justices when its 2018 term begins Oct. 1. That was the case from the time Associate Justice Antonin Scalia died in February 2016 until Associate Justice Neil Gorsuch was confirmed in April 2017, because Republicans refused to confirm Garland, President Barack Obama’s nominee.
A shorthanded court could deadlock 4-4 on some cases and refuse to hear others for fear of a tie. It could have a tougher time temporarily blocking the actions of lower courts, which takes a majority, and agreeing to hear cases, which takes at least four votes.
❚ If the court is without a ninth justice for a few weeks or months, it won’t have a huge impact, particularly since the cases the justices have agreed to hear are not blockbusters. But if Democrats win the Senate and Trump remains in the White House through
2020, an eight-member court could become entrenched. “I don’t think the Democrats would confirm anyone in the last two years of the Trump presidency,” said Erwin Chemerinsky, dean at the University of California-Berkeley School of Law. “That would really heighten the Supreme Court as an issue in the 2020 election.”