Central to the Supreme Court confirmation saga of the Trump administration has been the fact that no individual prospect from his pre-vetted list of 25 prospects is indispensable. They are all, by construction, conservatives or “originalists,” orthodox on the sanctity of gun rights, property rights, unlimited campaign spending, and deference to Republican but not Democratic legislation and legislatures. They are all but certain to join with the four other conservatives on the Court to circumscribe, if not revoke, constitutional reproductive rights. That’s the whole point of Trump’s pledge to appoint “pro-life” justices, with this interest-group-controlled vetting process as the actual guarantee: to ensure that none of the 25 are secretly “judicial activists” — like Kennedy or O’Connor or Souter or the other great Republican-appointed betrayers of the past (including the author of Roe v. Wade, Harry Blackmun). Trump’s bond with the conservative legal establishment and with Christian right leaders depends strictly on him delivering on this one essential task. They don’t, after all, love him for his personality, his piety, or his deep thinking.
Thus, Republican anxiety in the specific case of Brett Kavanaugh is limited to the unlikely scenario where (1) his nomination is rejected or withdrawn, (2) Democrats win control of the Senate on November 6, and (3) there somehow isn’t enough time to confirm a replacement in the lame-duck session that Mitch McConnell would without any doubt call. Since Trump would be able to almost instantly name a replacement for Kavanaugh (another nice byproduct of his list), this condition (3) seems unlikely to be a big problem, though without question the timetable would leave no room for error.
There is, moreover, a way to make reasonably sure that Kavanaugh’s problems aren’t replicated in a successor: Trump could name a woman, like Amy Coney Barrett, who is extremely unlikely to get hit with sexual-assault allegations. Indeed, many conservatives preferred her to Kavanaugh from the get-go on grounds that it would be nice to have a woman in the mix on a Court determined to overturn Roe.
But now the dynamics of confirmation fight have grown intense enough that Kavanaugh’s new bro Lindsey Graham has floated a very different idea into the testosterone-drenched air of conservative sentiment: If the Senate votes Kavanaugh down, renominate him. Yes, seriously:
President Donald Trump should renominate Brett Kavanaugh if the Senate fails to confirm him for the Supreme Court this year, Sen. Lindsey Graham declared Tuesday.
The South Carolina Republican said he still believes Kavanaugh will be confirmed to the high court soon. Senate Majority Leader Mitch McConnell, R-Ky., has vowed that the Senate will vote on Kavanaugh this week.
But Graham offered Trump a contingency plan in case the nominee is narrowly defeated.
“If his nomination were to fall short, I would encourage President Trump to re-nominate Judge Kavanaugh to the Supreme Court,” Graham said in a statement. “It would – in effect – be appealing the Senate’s verdict directly to the American people.”
The idea is that Trump and Republicans could barnstorm through the red states represented by Democratic senators and either get them to flip or beat them.
“The midterm elections are only 35 days away and a new group of senators may view Judge Kavanaugh’s nomination very differently after hearing from the voters in their states,” Graham said in his statement.
Asked about Graham’s idea, Trump told reporters Tuesday that “certainly it’s interesting.”
If Democratic senators nonetheless get reelected, and/or if there’s no reason to think the overall posture of the Senate toward Kavanaugh would change, it would be … awkward to say the least. Having renominated Kavanaugh, Trump would almost certainly have to back him until another vote is held, and by then, the time to name and confirm a replacement during a lame-duck session would be gone. The whole thing makes little strategic sense, particularly since Kavanaugh is unpopular and growing more unpopular. Turning the midterms into a referendum on this judge would be very dangerous.
But what Graham is signaling is that supporting this entirely dispensable judge, who was mostly chosen because his confirmation was erroneously expected to be a slam dunk, has become an end in itself for Republicans. Call it a reflection of white male identity politics, simple partisanship, or pure anger, but it now appears that no one but Kavanaugh will do. And since all of these principles are sacred to Donald Trump, it’s no wonder he finds Graham’s idea “interesting.” Perhaps Kavanaugh will be confirmed the first time around and it won’t be necessary to renominate him. But if not, Graham won’t be alone in wanting him to stick around.