In the current environment in Washington nothing is sure until it’s in the rearview mirror. But thanks to a surprise gambit from Senator Jeff Flake, it looks like a final Senate vote on Brett Kavanaugh’s confirmation for the Supreme Court will be delayed for roughly a week to allow for an FBI investigation of allegations of sexual assault and other misconduct against him, upsetting the confirmation timeline.
What happens next depends, of course, on what form the FBI investigation takes, what it produces, and how seriously various senators take the results. There are differences of opinion as to whether Flake (supported, so far, by at least one fellow Republican, Lisa Murkowski) is genuinely undecided, is looking for a reason to buck the party line, or is just checking a “due diligence” box before dutifully voting for Kavanaugh. It’s possible the FBI will raise so many additional questions that Democrats will push for a reopening of Judiciary Committee hearings, or essentially demand that the full Senate hold its own inquiry instead of just proceeding to a vote.
Assuming the investigation doesn’t turn everything upside-down, the next question is whether Mitch McConnell will put the Senate through all the preliminary steps of confirming Kavanaugh while the investigation is going on, so that a final vote can be held immediately when the one-week pause has expired. We think of the Senate filibuster against Supreme Court confirmations as having been “abolished,” but technically all that happened when Republicans “nuked” it in 2017 is that a majority vote can cut off debate after a limited period of time. That time will still have to expire, which could add another week to the timetable unless McConnell starts right away (he’s only promised to hold back for a week on the cloture vote cutting off debate) and a majority of senators (meaning, likely, all the Republicans) back him up. We may actually get our best indication of where fence-sitters like Collins and Murkowski and Flake (and a few undecided Democrats like Joe Manchin) will wind up via these preliminary votes.
In any event, unless the investigation generates additional delays, the Senate should be ready to vote in a week or two. Any way you slice it, Republicans will miss their first big deadline for clearing Kavanaugh: the beginning of the new Supreme Court term on October 1. Until such time as a replacement for Justice Kennedy is confirmed, the Court will be operating with eight justices. The effect of a vacancy could be extended if the new justice, whoever it is, chooses not to participate in decisions in cases taken up and argued before she or he is present.
The Kavanaugh nomination itself will not expire until and unless (a) it is withdrawn by the president; (b) he is rejected by the Senate; or (c) January 3, 2019, when a new Congress is sworn in. Even if there are more brief delays, the Senate has plenty of time to deal with Kavanaugh before breaking for the midterm elections. Indeed, with significantly more Democratic than Republican senators in tough reelection races this year, McConnell may be happy to keep them around and off the campaign trail. And so long as Kavanaugh maintains strong support from Trump, Republicans will want to keep pressure up on Democratic senators in states where Trump is popular to vote for his nominee.
If, however, Kavanaugh confirmation remains in doubt, each passing day will add to Republican fears that if Democrats take control of the Senate on November 6, Trump and the GOP would have a compressed window for getting this crucial Supreme Court seat filled before January 3, when the new Congress arrives. Yes, a postelection lame duck session would most definitely be convened by Republicans, and there would be just enough time for vetting, Judiciary Committee hearing, and a Senate vote. There wouldn’t be any margin for error, however, particularly given holiday distractions. So there may be a strong temptation if Kavanaugh is in trouble after the FBI investigation to push a vote even if he’s likely to lose, or to withdraw his nomination altogether. Either way, the decks would be clear then for Trump to quickly pull another right-wing jurist from his pre-vetted SCOTUS prospect list, start the clock ticking again, and maybe even get his MAGA base excited about the new kid on the judicial block.
Should Republicans hang onto control of the Senate on November 6, however — and at present FiveThirtyEight projects them as having a 2 in 3 chance of prevailing — then they can relax a bit; if their nominee isn’t confirmed by January 3, then Trump can renominate him or her at that point. But nothing about this process so far has gone totally according to schedule.