When the second sexual-assault allegation came out against Brett Kavanaugh, I predicted Republicans would pull his nomination. I was wrong. Kavanaugh managed to rally the Republican base like a seasoned politician, changing the question from the specifics of the allegations into a broader cultural war, in which Kavanaugh is a stand-in for every conservative who feels unfairly maligned by smug progressive elites (i.e, every conservative).
Sticking with Kavanaugh made no sense, and still makes no sense. Sometimes people do things that make no sense, though. And Republicans may well decide Kavanaugh’s confirmation is a symbolic battle in the kulturkampf that overrides any cost-benefit analysis. That is certainly what the public posturing by the Republican Party, as epitomized by Lindsey Graham, seems to indicate. But there are real signs of weakness beneath the public bravado.
A pair of weekend reports from Axios’s Jonathan Swan conveys the White House’s outward-facing stance. According to administration officials, Kavanaugh is “too big to fail,” because “[t]here’s no time before the [midterm] election to put up a new person.” And if Democrats win a Senate majority, Trump would allegedly prefer to keep the seat vacant rather than compromise with Democrats.
This may be what Trump officials are telling people, and it might even be what they are actually thinking, but the position makes absolutely no sense. If Kavanaugh fails, there might not be enough time to confirm a new justice before the elections, but there will certainly be enough time to confirm one before a new Senate takes over. There are almost two months between the elections and the new Senate. Yes, it would look ugly for Republicans to rush through a new justice after an election that gives Democrats a majority. (Democrats have a two-in-seven chance at the moment.) But this would never stop them from going ahead. The entire Republican caucus, including
Susan Collins* and Lisa Murkowski, blatantly violated historic norms by holding a Supreme Court spot vacant through all of 2016 just to give their party a chance to fill it. They obviously care a lot about giving their party control of the Supreme Court, and are willing to flout precedent and public opinion to do it. Why would they throw another vacancy away?
Unless the Trump administration is completely ignorant, it is broadcasting threats in order to shore up Republican support for Kavanaugh. Republicans senators may want to pull the damaged nominee and replace him with an equally conservative justice who was never accused of raping anybody, but the White House is shouting that the alternative is getting nobody at all. And why would they make such non-credible threats? Because they’re worried about getting the votes.
That worry also comes through in some of the other reporting. Republicans directing the Kavanaugh fight “conceded [it] to be an uphill battle in which time is not on their side,” reports Politico, also citing a person involved in the battle who puts the odds of confirmation at 50 percent.
The FBI investigation into Kavanaugh is now the key source of uncertainty. Multiple news outlets have reported over the weekend that the White House has dictated limits on the investigation. The FBI reportedly can’t even ask the supermarket that allegedly employed Mark Judge in 1982 for payroll records that would confirm his employment. (Christine Blasey Ford recalled seeing Judge working at the Safeway in Potomac after the alleged attack.)
If the White House chokes off the FBI investigation — or, more precisely, if wavering Republican senators allow the White House to do so and decide to treat an ersatz probe as legitimate — then Kavanaugh might be safe. But the fact that the administration is attempting to strangle the FBI is itself a sign of concern. And the fact that the FBI is obviously leaking about White House interference shows that at least somebody within the Bureau wants to conduct a legitimate investigation.
And what is there to turn up? Potentially a lot. Kavanaugh’s testimony was, at best, wildly misleading. You can find detailed accounts of Kavanaugh’s train of lies here, here, here, and (most thoroughly) here. Would it matter if this is proven? Senator Jeff Flake said on 60 Minutes it would, and provable testimony perjury would be disqualifying. (Obviously there is some cause to doubt whether Flake would follow through on this promise.)
[The New York Times reports this afternoon that the White House has authorized the FBI to interview anybody it deems necessary, as long as the review is complete within a week. The change appears to have come at the behest of Flake, who told an audience, “It does no good to have an investigation that gives us more cover, for example. We actually have to find out what we can find out.” This substantially increases the peril Kavanaugh faces. And Trump’s press conference remarks seemed to signal a willingness to cut Kavanaugh loose if the investigation turns up more damning evidence. “Certainly if they find something I’m going to take that into consideration,” Trump said, when asked if he would consider abandoning Kavanaugh under such circumstances. “Absolutely. I have a very open mind. The person that takes that position is going to be there a long time.”]
The issue of Kavanaugh’s lying is one his conservative defenders have only barely begun to acknowledge. It is probably the central weakness in his candidacy at the moment. Kavanaugh wrote his opening statement the night before his testimony. It was intended to rally his party with red-meat partisan rhetoric, and lead directly to a rapid vote in a flourish of tribalistic emotion. It was not intended to survive a week of close factual scrutiny by the media or potentially the FBI.
Republicans have already prepared a fallback position that Kavanaugh’s underlying offenses happened a long time ago and should not disqualify him. It will be interesting to watch them develop a defense of his perjury. The argument that exists so far simply treats the accusation that Kavanaugh has told lies as so damning that it is unthinkable. “To deny the allegations as he did—invoking his children and parents and so many others who know him—and be lying would mean that he is a sociopath,” editorialized The Wall Street Journal last week. “The logical implication of a ‘no’ vote is that a man with a flawless record of public service lied not only to the public but to his wife, his children and his community,” writes Kimberly Strassel today. “Any Republican who votes against Judge Kavanaugh is implying that he committed perjury in front of the Senate, and should resign or be impeached from his current judicial position, if not charged criminally.”
Well, yes. Kavanaugh has told many, many lies. This doesn’t make him a “sociopath.” Kavanaugh probably believes he did terrible things as a boy, but grew up to be a man who treats women respectfully. I actually accept his characterization of himself as a good father and mentor to girls in his community. The most probable account of his actions is that Kavanaugh (understandably) decided his youthful crimes should not prevent him from attaining the highest position in his career. He also calculated that any partial defense would come unraveled, and settled from the outset on a stance of total denial. This is why he has told lie after lie after lie.
But now Kavanaugh is caught in those lies. He is worried that two Republicans senators might decide they’d rather vote for a justice who hasn’t flagrantly perjured himself. And this fear has legitimate basis.
Correction: Collins did call for Garland to receive a hearing.