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Kavanaugh, Trump and Conservative Ressentiment


From a strictly rational perspective, it strikes me as obvious that Republicans would be better off with one of the many judges who would cast the same votes as Kavanaugh without the “credibly accused of sexual assault” and “repeatedly lied to Congress” baggage. But there are reasons that’s not the path they seem to be taking as of now:

From a strictly rational perspective, this is a strange decision. Conservatives who thought Trump was unfit for office in 2016 faced a real dilemma: Once he secured the Republican nomination, stopping Trump meant electing Hillary Clinton, and hence would (from a conservative perspective) come at a substantial policy cost. That’s not the case here; any candidate for the Supreme Court on the Federalist Society’s 25-person shortlist would cast essentially similar votes to Kavanaugh. If Kavanaugh’s nomination was withdrawn and he was replaced by an alternative like Amy Coney Barrett or Thomas Hardiman — reportedly the last potential nominees to be considered along with Kavanaugh — there is no reason to believe Republicans would pay a significant price in terms of the outcomes of Supreme Court cases.

So why not cut bait? Amber Phillips of The Washington Post has suggested that time could be an issue: An early October confirmation would give Republicans “a little more than a month to campaign on the success of firming up the court’s 5-to-4 conservative majority,” which would be “no small thing in an election year in which Republicans need to rev up their base to counteract an activated left.” This is a questionable political calculation. Kavanaugh is already unusually unpopular for a Supreme Court nominee, and Ford’s accusations are likely to make things worse. Campaigning on the importance of getting a new nominee without Kavanaugh’s baggage confirmed could be a better option.

The more practical reason for Republicans to forge ahead with Kavanaugh is the possibility that they might not get someone else confirmed before the midterms, which would be disastrous if Democrats captured the Senate (which, according to FiveThirtyEight, has a propability of 1-in-3). But Republicans can almost certainly get a nominee confirmed before then. And even if they didn’t, they could use the post-election lame duck session to confirm a nominee. This might be unusual practice, but then so was holding a Supreme Court seat vacant for well over a calendar year while refusing to give President Obama’s nominee so much as a hearing. Republicans have very consistently put substantive priorities over procedural norms, and they would do what it takes to get a second Trump nominee confirmed.

So why not pursue this course? In addition to possible political miscalculation, there’s the reality of negative polarization. Even if the ultimate policy results would be similar, Kavanaugh stepping aside would still be perceived by many Republicans as a “win” for Democrats. And Trump, to put it mildly, is not wont to concede error.

But there’s another issue at play here. As Vox’s Matt Yglesias observes, Trump has effectively made the entire Republican Party complicit in his corruption and misconduct. If being credibly accused of attempted sexual assault as a teenager is disqualifying for a Supreme Court seat, then what does that say about Trump’s fitness to be president? He has, after all, been credibly accused himself of sexual assault, and openly boasted about his tendency to grope women. Congressional Republicans who have not merely accepted Trump as the leader of their party but actively shielded him from any accountability are going to have a hard time holding any Republican to any standard of behavior.

I’ve heard arguments that Kavanaugh is in fact an Indispensable Man (TM) because of promises he’s made to Trump about executive power or something. This might be one reason Trump is standing by his man. But it doesn’t make any sense. One Supreme Court vote is in itself worth nothing. If the Supreme Court is going to issue a legally shaky pro-Trump ruling, the four other Republican justices have to be on board, and if they are presumably any member of Team Republican would cast the same vote. An outlier can have some long-term effect on the law, but as far as Trump is concerned any ad hoc doctrines needed to defend him will come from the bottom-up, not the top-down (cf. the legal war on the ACA.) And, in addition, while it’s not literally impossible to be a reactionary outlier willing to make particularly outlandish arguments in concurrences and dissents with Thomas and Gorsuch already on the Court…close enough.

My point dovetails with Michelle Goldberg’s Devil’s Theory of ramming Kavanaugh through:

There is a small, dark part of me that thinks it would be fitting if Republicans shove Kavanaugh through despite the allegations against him. Anyone Trump nominates is going to threaten Roe v. Wade. Kavanaugh would at least make plain the power dynamics behind forced pregnancy. We would lose Roe because a president who boasted of sexual assault, elected against the wishes of the majority of female voters, was able to give a lifetime Supreme Court appointment to an ex-frat boy credibly accused of attempted rape. Kavanaugh, helped by an all-male Republican caucus on the Judiciary Committee, would join Clarence Thomas, whose confirmation hearing helped make the phrase “sexual harassment” a household term. They and three other men would likely vote against the court’s three women. The brute imposition of patriarchy would be undeniable.

If the Kavanaugh nomination is scuttled, chances are Republicans will try to replace him with someone like Amy Coney Barrett, who is in some ways more conservative. She would put a softer, female face on the culture war. But that’s a fight for another day. On Sunday, Politico quoted a lawyer close to the White House as saying that the administration had redoubled its support for Kavanaugh in light of Blasey’s claims: “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried.” If the Kavanaugh nomination goes forward, it’s because Trump and his allies believe that a certain class of men accused of sexual assault deserve impunity. The question now is whether any Republican senators believe otherwise.

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