Wednesday, September 19, 2018

The Stakes in the Next Round of Kavanaugh Hearings (if they ever happen)

by Michael C. Dorf

Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked  themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur. Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.

I don't deny that this is a potentially important moment for the #MeToo movement, but it is not a uniquely important one. Too many other politicians, celebrities, business executives, and others have been named and shamed for the outcome of this one case to make or break it. The Blasey/Kavanaugh contest is probably most useful as a gauge of how much has or hasn't changed since the Hill/Thomas hearing 27 years ago.

To be sure, the stakes are very high for Kavanaugh himself. Either he will sit on the Supreme Court or not. There is even a possibility--though given the quite different process, not much of a likelihood--that Kavanaugh could be impeached and thus lose his current position as a life-tenured federal appeals court judge. There is also the matter of Kavanaugh's reputation, which will suffer permanent damage even if he is confirmed, unless Blasey's testimony (assuming it occurs) is so lacking in credibility that it persuades virtually no one. A substantially more likely outcome is that even if Kavanaugh is confirmed to the SCOTUS, millions of people will think of him as having gotten away with a very bad act--much in the way that many people think of Clarence Thomas, Bill Clinton, and Donald Trump, despite their respective confirmations, non-removal by the Senate, and election.

The stakes are by now arguably lower for Blasey, because once she accepts the invitation to testify  her fate will be sealed. She will be lionized by the #MeToo movement and vilified by the right, pretty much regardless of the outcome of any hearing.

But putting aside personal stakes for the key actors, the stakes for the country are probably pretty low. There are two possible short-term outcomes of a hearing: Either Kavanaugh is or is not confirmed to the SCOTUS. If he is confirmed, that cements a conservative majority on the Supreme Court. However, anyone who thinks that the failure to confirm Kavanaugh would mean that the seat would remain open until the possible inauguration of a Democratic president in 2021 is mostly engaged in wishful thinking. Sure, that's a theoretical possibility, but it's highly unlikely.

Suppose that Kavanaugh's nomination is either defeated or withdrawn by the end of the current month. Having interviewed a number of candidates already, Trump would likely name his next choice in very short order. Democratic senators would demand time to study the new nominee's record, but Republicans would not give so much time as to allow the nominee's defeat.

According to the latest projection, the Republicans have a better than even chance of retaining the Senate in the midterms. If that happens before a substitute nominee can be confirmed, the time pressure will be off. But even if no nominee is confirmed by election day and Democrats take the Senate, the odds are very high that Senators Grassley and McConnell will act to ensure confirmation in the lame-duck session. The only real hope for Democrats at that point would be for a second lightning strike, with an unforeseen scandal breaking too late in the process to nominate and confirm a third choice before the new year. And even then, I wouldn't count out the Republicans' commitment to filling the seat. If you don't believe me, I'd be happy to introduce you to Justice Garland.

Now it might be objected that even if Republicans have to settle for Trump's next choice, that choice is likely to be a moderate. After all, the rejection of Judges Haynsworth and Carswell led to President Nixon's nomination of Justice Blackmun, who turned out liberal; the rejection of Judge Bork and the withdrawal of Judge D. Ginsburg led to President Reagan's nomination of Justice Kennedy, who turned out to be substantially less conservative than many observers expected. Would the rejection or withdrawal of Kavanaugh lead to the naming of a more moderate or even liberal substitute?

That's highly unlikely. The era of Republican appointees evolving in surprising ways is basically over now that nominations have been outsourced to the Federalist Society. Justice Alito was named as a substitute for Harriet Miers after she was withdrawn, and he has been at least as conservative as she would have been, probably more so given that she was withdrawn at least as much due to pressure from the right as from the left.

I think the most we can say about the prospect of Kavanaugh being defeated or withdrawn is that if either happens, there is a fair chance that Trump's next pick would be a woman--but a very conservative woman.

Notes to Readers:

(1) Today I am observing Yom Kippur. I wrote this blog post yesterday afternoon and set it to publish automatically this morning. Thus, given the fast-moving pace of the news cycle, it will likely be dated already in one or more respects by the time you read it.

(2) On alternate Wednesdays, I customarily write a blog post that addresses a theme related to my Verdict column for that week. I have chosen not to do so today, but I do have a new column out. It's called Can a Vegan Win the Presidency? (and inspired by Senator Cory Booker's theatrics during the first round of the Kavanaugh hearings). I am aware of the irony of running a column that has food as one of its main themes on a day when I am fasting.