From a purely political perspective: If his nomination is withdrawn, won't Trump just nominate another conservative judge (who would presumably be confirmed by the republican-controlled senate)?
Expanding on Elliot's answer.
Even if rushed, there is a process to approving a President's nomination. Nominating and approving another person before the November election would be possible, but it would be tricky to do it that quickly.
Could Republicans really get Barrett or another nominee confirmed before then? And if not, could they confirm her in the so-called lame-duck session after the midterms but before the new Congress meets on Jan. 3.
The answers are “possibly” and “probably” — but the timing is getting dicier by the day.
(written on 9/25)
The Republicans right now just barely have a majority of the Senate. There's a Senate election in just 40 days. So there's a chance they could lose control of the Senate before anyone else could be nominated and voted on. If that were to happen, then the President would be forced to nominate someone who could get at least some Democratic support.
That being said, its not a great chance. Only about a third of Senate seats are up, and only about a third of those are held by Republicans. 538 currently gives the Democrats about 31.5% of taking control.
However, that's not too much longer odds than the Republicans faced in their gambit of refusing hearings for Merrick Garland, and they were lucky. Sometimes you beat the odds when you take these gambles, and if goodwill from the other side isn't a consideration (which its fair to say hasn't been a possibility during Mitch McConnell's entire chairmanship), there isn't much downside to not trying.
Senators doing their job
the moral benefits of not having an accused sex offender on the Supreme Court.
That's not just a moral benefit, that's the senate's job. From senate.gov (emphasis is mine):
The Constitution grants unique powers to the Senate, allowing it to serve as the more deliberative legislative body and as a check on the executive and judicial branches by providing advice and consent on nominations and treaties.
"If he doesn't someone else will"
But from a purely political perspective: If his nomination is withdrawn, won't Trump just nominate another conservative judge (who would presumably be confirmed by the republican-controlled senate)?
Yes, he will probably nominate someone else. Then the same procedure starts again and the senate will have to its job ("to provide a check on the executive and judicial branches by providing advice and consent on nominations") again.
The argument that rejecting this nominee is pointless because there will be another who may be equally bad sound a lot like “if I don't, someone else will”. That argument is discussed on the Philosophy Stack Exchange site. In this case, that argument undermines the senate's responsibility.
This should be obvious, but in addition to the other reasons stated, even if the Republicans retain control of the U.S. Senate in the mid-term elections, if Democrats prevent Brett Kavanaugh from being appointed to the U.S. Supreme Court, then the seat will be filled by someone else nominated by President Trump instead.
Brett Kavanaugh is a very undesirable candidate for this life long post in terms of his history of judicial decision making, his background as a very partisan Republican operative, and his personal character. The personal character issues include:
- multiple accusations of sexual assault,
- a history of misogyny in how he chooses and treats his clerks,
- provable instances of lying under oath,
- problems with alcohol overuse, and
- problems with personal financial management.
- He has a history of being a bully and a jerk in his personal life and that could influence how he acts with a powerful lifetime appointment in subtle ways.
If Trump nominates a replacement candidate, that candidate would in all likelihood be better vetted and would be at least someone less obviously polarizing. Instead of a judge in the model of Justice Thomas, like Kavanaugh, Trump might nominate a judge more like Justice Roberts, for example. And, while a Justice Roberts clone would still be a profound disappointment to Democrats, a Justice like that would be far more attractive to Democrats than a Justice Kavanaugh.
So, from the Democratic party's perspective, since no other nominee could be materially worse than Kavanaugh in their view, in a worse case scenario they postpone the addition of a bad new justice to the high court and deliver a defeat to the President, and in the best case scenario they also cause the addition of a less bad new justice to the high court.
Also, a success in defeating Justice Kavanaugh establishes a template that Democrats can follow in defeating future nominees to any kind of post who are particularly undesirable.
Realistically, not fighting the Kavanaugh nomination is the worst option available to the Democrats which provides them with no benefit whatsoever and would undermine their credibility as opponents of the regime and supporters of their principles. And, if they fail to strongly oppose his confirmation, they also set a precedent that would make it hard for Democrats to oppose future nominees who share similar personal or ideological flaws with Kavanaugh.
There are three issues that may be on the Supreme Court's docket that very well may spell the end of a political party: Gamble v. United States, the removal of Roe v. Wade, and the question of whether a sitting president can be convicted of a crime.
Gamble v. United States is about the 'separate sovereign' issue, basically removing a form of double jeopardy across state and federal lines. This is of major interest to Republicans because it looks increasingly likely that Mueller's probe will end up indicting quite a few Senators, Representatives, and campaign people before it's over. While the President can pardon Federal crimes, he cannot pardon State crimes. Mueller is currently using this fact to compel testimony in order to increase the speed of his investigation. Republicans would much rather slow things down until Mueller can be fired.
Roe v. Wade. Conservatives have been trying to stack the Supreme Court for Roe's overturn since Reagan nominated Rehnquist in the 80's. This excites the Republican base at a time where they need all the help they can get to avoid losing the Senate along with the House come November.
At some point, is very likely that we will see federal charges levied against Trump by the Special Prosecutor, ranging anywhere from Obstruction of Justice to Tax Fraud to Seditious Conspiracy. Kavanaugh has publicly stated that he did not believe in indicting a sitting president.
Unfortunately for the Republicans, it is nearly too late for them to find someone else for the Supreme Court before the Dems take both houses of Congress, and Trump has exerted a good amount of pressure on them to keep Kavanaugh, likely due to point three. This is a job interview, not a trial, and someone as unpopular as Kavanaugh would have been withdrawn weeks ago if it weren't for these three upcoming cases and the possibility of them tipping the Supreme Court Conservative.
Beside the (still relatively remote) hope to delay the process long enough for the next Senate to decide on it, there could be some benefits in forcing Republicans to take a stance on the Kavanaugh nomination and the accusations against him, a few months before elections. It might provide video clips to build ads, allow their opponents to pain them as insensitive to sexual assault victims or women in general, as hypocrites, etc.
Victories are hard to come by for minority parties. By borking the nomination democrats "stand up" to Trump, which polls indicate most adults, if not likely voters want. There's the suburban women appeal of fighting an alleged abuser as well, and women are expected to be critical in the election.
The flip side is what do they have to lose by not blocking it? Base motivation, which is crucial for midterms. As such, it's a win-win for the democrats to obstruct, regardless of the outcome.
Currently the Republicans have control of two of the branches of government (Executive and Legislative). If they pack the Supreme Court with partisan judges then they undermine the fundamental balance of power and the system of checks and balances.
For example, suppose Congress makes an undemocratic (IE: tyrannical) law such as making Trump President for life and the Supreme court has a majority of right wing partisans. There will be and can be no challenge.
In fact, Kavanaugh has already gone on record that the President should not be accountable to law (IE: he should be un-indictable) "so that he can concentrate on running the country". So if the court is packed with such judges the Republicans will be free to rig everything so that no one will ever be able to unseat their party, resist their tax manipulation to the benefit of plutocrats, etc.
Basically our entire democracy (if you can call it that, with the Electoral College, gerrymandering and Russian interference) is on the line. The democrats have everything to lose - their very raison d'etre.
Political benefits and moral benefits are often one and the same. Preventing someone accused of sexual assault from being confirmed to the Supreme Court without a thorough investigation is itself a political gain.
Because of this moral benefit, the optics of this situation favor the party that opposes confirming someone accused of such crimes without a full review.
There's a variety of political benefits, it's difficult to actually list them exhaustively:
- It's the expected course of action for the party to oppose judges with Kavanaugh's ideology, so the base will reward/punish senators for their actions.
- It's the expected course of action for the party to oppose nominees who are guilty of sexual harassment/assault, so the base will reward/punish senators for their actions. The treatment of political actors by their own party in such cases (when those people decide to "tough things out") is a form of branding. Moore and Franken are two recent examples that contrast with each other.
- Delay of a confirmation allows the situation to change, the senate may flip after the election for example.
- Successful withdrawal of the nomination is a political win and will energize the base while depressing turnout for the Republicans. This is the common wisdom at least, and can mirror what happened with the attempted ACA repeal.
- Dragging out the process is helpful in energizing the base this close to an election, Kavanaugh is a historically unpopular nominee, keeping him in the news is good for the party as a whole.
- Other potential nominees can be marginal or even significant improvements over Kavanaugh in a variety of ways. For example there were rumors that Trump wanted to nominate his own sister, who actually seems to quite moderate ideologically as a judge (compared to federalist society clones), and is quite old compared to Kavanaugh.
- Other possible nominees can have their own weaknesses, allowing them to potentially be defeated in turn or forcing the Republicans into more moderate choices. For example, Barret is in a sect of Christianity where her title in church is literally "handmaiden" and her views on abortion are well known, Senator Collins would be incapable of pretending that she thinks Roe v. Wade is "settled law".
- "Borking" Kavanaugh is very fitting since their disqualification (prior to the multiple sexual assault allegations) is that they were first highly partisan political operatives. Democrats would be insane to not oppose someone who is their self-admitted political foe. An enemy ideologue leads to unwanted policy outcomes, which can still serve to lead to political power. A powerful partisan enemy will always lead to the worst political outcome. Both parties can draw political power from Roe v. Wade for example, but it would be hard to find one Democrat who thinks Bush v. Gore lead to a good political outcome.
The Democrats have vowed to not allow ANY nominee put forward by President Trump to be confirmed.
At the moment the only way they can do that is through the interminable smear campaigns we've seen waged against Justice Kavanaugh.
Until a few years ago, when the fillibuster was removed as an option by the (then) democrat senate because they didn't want the Republicans to use it against them, that was their chosen tactic as it didn't make them look half as bad in the public eye.
Their hope is that if they can delay the confirmation vote until after the midterm elections in November, they will have a majority in the senate and use that to just vote any nominee whatsoever into rejection, thus making it impossible for the President to appoint any justices (or indeed anyone in any position requiring a senate vote) at all until the 2020 presidential elections.
That's the game, and they'll use whatever tactics they need to play it. This is not about Kavanaugh or Ford, Kavanaugh is an unfortunate victim and Ford a tool in their arsenal. This isn't about right or wrong, they couldn't care less whether Kavanaugh did what Ford claimed he did (which may or may not have any credibility, that too is irrelevant to them). All that matters to them is that this circus delays the confirmation vote, and they'll milk it until the vote has been lifted over the midterms. I wouldn't be at all surprised if the next scripted "accusations" are already sitting in some democrat senator's file folder, ready to be "revealed" the moment the FBI says there's nothing to prevent a confirmation vote, thus delaying things even further.
Midterm elections are notorious for their low turn out. Elections, in general, are emotional rather than rational actions. No single individual can decide their outcome. So people need to have some motivation to act on what they perceive to be some sort of collective good.
The only motivation Democrats had was to delay the inevitable confirmation.
There was no way to prevent the confirmation because even if the Republicans lost the election, there would have been 2 months between the election and the swear-in date of the new Senate. During those 2 months the lame duck Senate could have confirmed the judge.
But the Democrats had an opportunity to create a cause for their base to be angry about. Anger is known to be one of the best motivations. So it's effective. This was the sole goal of looking for reasons to delay the confirmation vote by any means they could find.