In football, your enemy isn’t the other team; your enemy is the clock. From a purely strategic standpoint, the same thing could be said about the current Supreme Court nomination battle. The Republicans’ enemy isn’t the Democrats, whom they outnumber. Their true enemy is the clock. That’s why the Democrats have been trying to “delay, delay, delay.” And, for a week now, it has worked.
Why are Republicans in a race against time? Because there is no guarantee that they will hold the Senate next year. Even if they do, their majority could be even slimmer than it is now, leaving less room for error. What is more, if they push to confirm a nominee in a lame duck session this fall, Republicans won’t have any leverage over Democratic senators living in red states, such as North Dakota’s Heidi Heitkamp and West Virginia’s Joe Manchin. The current leverage is that they have to get themselves reelected. But if that pressure is gone, whether they’ve won or lost on Nov. 6, they’re surely more likely to be solid no votes.
With the clock ticking, Republicans should ask themselves whether it’s time to replace Kavanaugh or whether they should stick with their starter.
For his part, Kavanaugh (based on a letter he released Monday) has no intentions of benching himself. “The coordinated effort to destroy my good name will not drive me out,” he said. “The vile threats of violence against my family will not drive me out. The last-minute character assassination will not succeed.”
But players don’t get to decide if they stay in the game. What is in the best interest of Republicans? There is not a clear answer to this question.
For years now, Brian Lunde, a sharp political strategist who defected from the Democrats to support George W. Bush in 2000, has told me repeatedly that abandonment is the most underrated weapon in politics. In general, he believes that people in politics get bogged down on sunk costs. They would, as a rule, be better off just failing early and getting to Plan B instead of doubling down. There are numerous psychological reasons why people are hesitant to pull the plug on a project.
If Republicans were to go this route, they should rip off the Band-Aid in one fell swoop and hope the next nomination goes through without a hitch. In other words, throw Kavanaugh under the bus. Now. But who should replace him?
Regular readers of this column know that I have always preferred a Judge Amy Coney Barrett nomination. Under normal circumstances, swapping Barrett for Kavanaugh would be the obvious move because (a) the Senate confirmed her for her current job as a circuit court judge less than a year ago, and (b) as a woman, she would presumably be less susceptible to the types of #MeToo charges that Kavanaugh faces. The problem with Barrett, at this point, is that her nomination would be a rush job, and that she—as a young female conservative—would potentially be viewed as an even bigger cultural threat to liberals.
And who’s to say they wouldn’t dig up something (legitimate or not) from her past that would slow down the proceedings? Don’t forget, a couple of short weeks ago, Kavanaugh seemed like a Boy Scout. Or what if Republican Senators Susan Collins and Lisa Murkowski oppose her based on the assumption that she would be even more likely to overturn Roe v. Wade?
This brings us to a break-glass-in-case-of-emergency scenario: nominating someone already in the U.S. Senate. Mike Lee would be a qualified choice, and the fact that he represents Utah suggests Republicans would easily retain his Senate seat.
On the other hand, if Republicans feel like betting everything on a lifetime appointment, they could nominate Texas Sen. Ted Cruz.
This would put a young conservative on the bench, true, but it would greatly increase the odds of Rep. Beto O’Rourke being elected to the Senate. (With Cruz, you have to wonder whether his own Republican colleagues would confirm him! On the one hand, they’d have put him on the Supreme Court and elevated his stature forever; on the other, they’d be rid of him.)
The problem for Republicans is that, electorally speaking, they have entered a damned if they do, damned if they don’t phase. It goes like this: If Republicans bail on Kavanaugh, it will depress the Republican turnout in the midterms.
The base will argue that the establishment allowed a good man to be railroaded—and that this is because they are wimps who are not willing to fight. Further, they will argue—perhaps not without merit—that caving to pressure this time will only incentivize more (in their minds, clearly false) allegations against future Republican nominees.
Let’s say that Republicans stick with Kavanaugh and show the base how tough they are. And let’s say they are ultimately able to use their majority to push him over the top in a party-line vote. Democrats would be able to use this to outrage and turn out their base of liberal voters—not to mention, to swing suburban women in their direction (after depriving Merrick Garland of a hearing, Republicans would now be accused of putting a “would-be rapist” on the Supreme Court). An outraged base usually beats a satisfied base.
Regardless, Republicans are betting that this is the best way to play the hand they have been dealt. Senate Majority Leader Mitch McConnell, for example, told conservatives this weekend that, “In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court.” If that prophecy comes true, one could certainly argue that trading a lifetime appointment to the high court in exchange for a midterm bloodbath was still a rational decision.
The real danger associated with sticking with Kavanaugh is the potential that he lingers for weeks, only to eventually be voted down. If this happens, there won’t be enough time left on the clock to run another play. Republicans would likely be hurt in the midterms and would possibly have to settle for a more moderate justice―just as Reagan had to settle for Anthony Kennedy after Robert Bork was “Borked” by the Democrats.
This would be the worst (if most ironic) outcome for Republicans.