Federal Courts and Nominations

Republicans, Democrats face risks and rewards in Brett Kavanaugh’s embattled Supreme Court nomination

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 2½ 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 “lame-duck” session at the end of this year.

Here’s what could happen as the drama over Christine Blasey Ford’s accusation and Kavanaugh’s denial plays out:

  • The Senate Judiciary Committee is likely to hear out 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 would hear Kavanaugh’s side of the story.

“If it takes a little delay, it will take a little delay,” Trump said Monday. “It shouldn’t certainly be very much.”

A public hearing would be reminiscent of Anita Hill’s sexual harassment charge against Clarence Thomas in 1991. Thomas barely survived Hill’s testimony, winning Senate confirmation by 52-48, the smallest margin in history.

  • Republicans could try to get Kavanaugh through the Senate within weeks after a truncated review of Ford’s accusations. That could haunt Republicans 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.

Another nominee?

  • The White House could withdraw Kavanaugh’s nomination, perhaps at his request, rather than put his family and the country through an ordeal similar to 1991. In that case, he probably would remain a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

“It is always worth holding powerful people accountable for sexual assault or harassment,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “So regardless of the political calculation, I think it sends a very strong message to women if you have the Senate take the claims seriously and give them the consideration they deserve.”

  • Trump could select another nominee from his original list of 25 people, and there’s the distinct possibility that – amid the #MeToo movement’s clamor – he would choose a woman. The most prominent name is that of 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 lame-duck 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.”

An eight-member court?

  • 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 already granted 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 new cases, which takes at least four votes.

“We’ve all done the math, and four out of eight is harder than four out of nine,” said Paul Clement, a former U.S. solicitor general who frequently brings cases to the court. “It’s going to slow down the pace of grants.”

  • 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.”

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