How Brett Kavanaugh Could Get Denied a Supreme Court Seat

Until late last week, the confirmation of Brett Kavanaugh to the Supreme Court seemed like a foregone conclusion. Though nearly all Democrats in the Senate had voiced opposition to him, the Republican majority was palpably eager to install another conservative justice on the court, where he could help push the country's laws to the right for the next generation. But Kavanaugh's path to a lifetime appointment has become more difficult since a woman named Christine Blasey Ford said he sexually assaulted her at a party in high school 36 years ago.

The accusation, which Ford raised to her local congresswoman and then passed along in a letter to Democratic Senator Dianne Feinstein before going public this week, has been strongly denied by Kavanaugh. This controversy may just be beginning, however, with both Kavanaugh and Ford (who had told a therapist about the incident in 2012) indicating Monday they were willing to testify before the Senate. The question hovering above all this is whether the allegation will torpedo Kavanaugh's nomination. He stands accused of a violent crime at a time of heightened awareness of sexual violence across the world, and while Anita Hill accusing Clarence Thomas of sexual harassment famously failed to fell him in 1991, previous Supreme Court nominations had been scuttled by something as minor as a history of pot use. Then again, given the conservative movement's support for his appointment, it won't be easy for opponents to slow Kavanaugh's push for power to a halt.

It could happen, though. Here's how.

For a long time, the norm in the Senate was to vote through pretty much any qualified candidate to the Supreme Court. Even after Robert Bork was blocked in 1987 for his right-wing views, the Senate routinely confirmed justices on a bipartisan basis. But confirmation fights have been getting more politically charged since then, and Republicans launched the Senate into a new era in 2016, when they refused to even give Barack Obama's pick Merrick Garland a hearing.

The Senate is now narrowly divided 51–49, and if Democrats uniformly opposed Kavanaugh, it would only take two defections for his nomination to go down. Alaska's Lisa Murkowski and Maine's Susan Collins are seen as the most moderate and independent-minded among GOP senators and both have voiced at least some support for hearings into Ford's accusation. They've been joined by Arizona's Jeff Flake and Tennessee's Bob Corker, both Republicans who are retiring from the Senate and therefore insulated from demands made by the pro-Trump conservative base. It's a big step from "we need to hear more before we vote" to actually voting no on Kavanaugh and risking the consequences of breaking from their party. But depending on how things play out, it's possible that these Republicans reject him. (Of these Republicans, only Flake is on the Judiciary Committee, but the full Senate vote, not the committee vote, is what determines Kavanaugh's fate.)

There's also the question of how Democratic senators facing tough reelection fights will vote on Kavanaugh. Before the assault accusation surfaced, they were in a tricky position: They didn't want to be seen as occupying space as far to the left as their more liberal colleagues, and may not have seen much value in denouncing Kavanaugh if he was going to be rubber-stamped by the Republican majority anyway. But if public support for the judge drops in the wake of Ford's allegation, that could provide them with political cover to sink him.

The blockade of Garland's nomination may have established a new precedent: If the Senate is controlled by the party opposing the president, why should those senators even consider confirming the other party's Supreme Court nominations? Though Democrats would have to win several tough elections in red states to retake the Senate, it's at least a possibility. If Kavanaugh isn't confirmed by the end of the year, Republicans may have missed their chance to get another justice on the court.

That means the GOP will likely be trying to speed through additional hearings and investigations, while Democrats do what little they can to delay, creating an environment where they can at least argue the GOP is not taking Ford seriously, and connect Kavanaugh to other high-profile conservatives accused of sexual assault, including Donald Trump himself. (Perhaps cognizant of that danger, White House aide Kellyanne Conway has publicly insisted Kavanaugh's accuser "should be heard.") Meanwhile, Republicans could try to use the specter of a Democratic Senate blocking their judges to inspire the base to come out to vote in the November midterms. If a Supreme Court seat is up for grabs in the Senate elections, it'll raise the stakes even further on an already high-stakes midterm contest, one that was expected to be about resistance to Trump as much as anything else.

Given all of the above, it seems like there is an easy way out for Republicans: Just find another judge. Kavanaugh was obviously Trump's preferred pick—possibly because of his stance on investigations of the president—but he's not uniquely qualified; there's a literal list of judges who would have extremely similar views on a whole range of issues. The White House is currently standing behind Kavanaugh, but that might change if Republican senators waver on the nomination. A fresh nominee would have to be vetted and go through the Judicial Committee hearing process, but the GOP could likely rush that along before the end of the year, even if it meant breaking a few norms along the way. It might be seen as a defeat for Trump initially, but at the end of the day he'd wind up with an anti-abortion, pro-employer, anti-regulation Supreme Court justice, just as he would have if Kavanaugh sailed through.

By sticking with Kavanaugh, Trump and his allies are betting they can either confirm him by January, when new senators are sworn in, or else retain the Senate. Both of those are likely outcomes at this point—but also far from sure things. If they are wrong on both counts, get used to having eight justices on the Supreme Court.

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