Why are Republicans so determined to install Brett Kavanaugh on the Supreme Court? That’s the question I’ve been asked most since last Thursday’s gut-wrenching, courageous testimony by Dr. Christine Blasey Ford about the Supreme Court nominee’s attempt to rape her at a drunken high school gathering. After all, there are plenty of conservative jurists with the Federalist Society seal of approval who are not facing multiple accusations of sexual violence. The question is reasonable, and the answer speaks to the toxic mix of self-interest and power that’s defined our politics since Donald Trump staged his successful takeover of the Republican Party.
Any other Republican president would have nominated one of many pre-vetted anti-abortion conservatives who have been groomed for a seat on the high court, and a nominee with as much personal and temperamental baggage as Kavanaugh would have been pulled long ago if pre-Trump political conditions were still in place. But a confluence of circumstances has led the administration and its senate allies to fight for Kavanaugh regardless of the severity of the allegations against him, despite the fact that he has bullied senators and misrepresented himself under oath, and in the face of a potentially significant political backlash.
Trump thinks Kavanaugh’s way-out-of-the-mainstream views on executive power will protect him from the Mueller investigation. In the near future, Mueller could subpoena Trump to testify or surrender evidence. It’s less likely, but not impossible, that he could indict Trump, or that Trump might be tempted to use the pardon power on his associates or himself, or that he or his associates might face state charges for criminal behavior where the pardon power would not reach but where questions of prosecution for double jeopardy will be addressed by the Court in its upcoming term. In each of these situations, Trump believes he has a lifeline with Kavanaugh, the loyal Republican operative whose views on presidential power seem to depend on the president’s party label. This may not be the case with other conservative jurists, and that’s a problem for Trump, who is in full self-preservation mode.
Congressional Republicans think Kavanaugh’s confirmation is essential to bolster support from a lagging base in a year when anti-Trump voters are fired up. They don’t want to suffer a loss just weeks before the election on something that matters so much to their core constituents and donors. Like tax cuts, there is a red line around Supreme Court nominations for Republican politicians, who fail to support them at great peril—as Lindsey Graham threateningly reminded them last week. It’s not a wonder that a Republican senate that failed several times to repeal the Affordable Care Act and could do little of purpose was nonetheless able to find the votes for a tax cut and the Gorsuch nomination. In fact, tax cuts and conservative judicial appointments are the reason why they defend Trump and enable his behavior. It’s the price of admission to the Republican Party.
But why push forward with Kavanaugh when other options are available? Apart from angering Trump and making him look weak in defeat, Republicans recognize that they may not get another chance if Kavanaugh goes down. Election Day will arrive before senators would be able to vote on a replacement nominee, and while Republicans are favored to hold the chamber it’s not a guarantee. They could try to confirm a nominee during the brief “lame duck” session after the election, but this would set off a partisan war as bitter as the one we’re in now given their previous position of holding Supreme Court seats open until people vote. If Democrats take the senate they would control the schedule and all committees, putting them in a position to say they will only hold hearings if Trump nominates Merrick Garland, effectively leaving the vacancy open until after the 2020 election.
So Republicans plow ahead with plans to ram Kavanaugh down the gullet of the body politic. They have refused to release documents relating to Kavanaugh’s political past, set arbitrary deadlines for confirmation, and, when confronted with Dr. Blasey Ford’s allegation, grudgingly held a one-day show hearing without witnesses where senators got exactly five minutes each for questions. Other credible accusers were not afforded even this minimal treatment, and the committee scheduled a vote for the following day before the parties were heard. They stonewalled a routine FBI background investigation until Jeff Flake, Susan Collins and Lisa Murkowski, lacking sufficient political cover, made it a condition of their support, and there are reports that the White House is attempting to keep investigators from overturning any incriminating rocks.
This process has the feel of an assault in its own right. In their singleminded determination to reach the one acceptable political outcome, they forced a survivor of sexual violence to relive her trauma in front of the world only to tell her that her pain doesn’t matter because her accused would-be rapist must sit on the Court. Yes, she’s believable, but the show’s over, let’s move on.
Republicans are not deaf to the cries of anger about what’s happening, nor are they ignorant of the enormous risk they’re taking with voters—especially but not exclusively white educated suburban women who are already motivated to vote against them in record numbers. They know the election is weeks away. It’s just that Trump’s party is about using raw power at any cost to lock in every advantage possible. A lifetime appointment to the swing seat on the Supreme Court may just be worth losing the House and even the Senate to Democrats. With the Republican assault on the process and the public in full view, that may end up being the price.