The Kavanaugh Conundrum
There's been one particular oddity about the fight over Brett Kavanaugh's nomination for the Supreme Court. It's surprised me a bit on its own merits, but also since I haven't heard it discussed in the media ever since the nomination was made. (That doesn't mean it hasn't been, just that I haven't heard it...)
From the first, Republicans knew that this would be a deeply controversial fight. Even Majority Leader Mitch McConnell told Trump he should nominate someone other than Kavanaugh. When the Federalist Society gave Trump their list of five "approved" nominees (which is another matter all its own...), Kavanaugh was on it, but at the very bottom. But that's who Trump nominated -- for the reason most people all presume, that Kavanaugh is seemingly against the legality of indicting a sitting president. And so Republicans were stuck with this fight.
And not just a fight, but a bitter fight that made them look small and corrupt, hiding tens of thousands of pages of documents. Defending a perjurer. Defending someone whose position on abortion may cause massive problems for Republicans in upcoming state elections. (Keep in mind that about 80% of women are against overturning Roe v. Wade.) And perhaps cause problems even for the senators themselves. Defending someone whose presence on the Supreme Court will always be a target for opponents and a reminder of these senators' egregious actions and which could be held against them when the tables are turned and Democrats are in control in the Senate and White House. And all over a nominee who is at risk of being impeached for his perjury when Democrats are next in control.
And all for a "fight" that has little meaning for them.
This nomination isn't like an election where, if you lose, then your opponent wins. This is just a nomination. And if for some reason Brett Kavanaugh is voted down (unlikely, I know, but it's always been possible), then it's not like Republicans lost the seat on the bench. Trump will just nominate someone else -- and someone who is just as deeply conservative. In fact, probably the first choice on the Federalist Society's list.
And that's the oddity.
Unlike most fights, this was a no-lose situation for the Republican Party. Not for Trump precisely -- we can figure out one big reason he nominated Mr. Kavanaugh. And while that's probably a matter of some concern to Republican Senators, it's far less so that for the potential indictee in the Oval Office. The main thing Republican senators care about is having a very conservative justice sitting on the Supreme Court with a lifetime appointment.
If at the very beginning of this nomination process Republican leadership very quietly behind the scenes told Trump not just that they preferred a different candidate (which Mitch McConnell did do), but far more forcefully made abundantly clear that they would be releasing all of the requested documents as requires, and that leadership would give their members the opportunity to vote their conscience, that GOP senators didn't have to be lock-step with one another, and they wouldn't have their careers tied to a deeply-flawed, problematic nominee, one with an exceedingly-negative approval by the public, then it might have been so obvious from the very first that Brett Kavanaugh would have no chance of getting confirmed, and he might have withdrawn his name, or Trump might not have made the nomination in the first place. And if that happened, Republicans wouldn't have "lost" anything -- because it all would have been immediately followed by a new nominee just as conservative as Kavanaugh. And one without all the "perjury-abortion-blocked documents" baggage, one who wouldn't burden the senators' own careers, one would wouldn't be at risk of being impeached and losing the seat -- and one who would sail through the nomination process and bring Trump and the GOP a semblance of acclaim for just a fine jurist.
But instead, Republicans chose to fight this battle. Over a nominee who will forever color them and the party. They chose, as they always have, to cave in to Trump, to their own almost-inexplicable detriment. For pretty much no reason at all, because the next nominee would have been just as conservative, and perhaps even admired. It was like putting all their chips on the table and going all-in for Harriet Miers or Alberto Gonzales -- or even Clement Haynsworth or G. Harrold Carswell, all of whom were considered for the Supreme Court but never got there.
At a certain point, this withdrawal scenario ceased being viable. If Kavanaugh's name was removed, it would have pushed the process too far back and risked the next nominee being voted on by a remotely-possible Democratic Senate. So, I understand why they're fighting for him now. But at the start?? They could have had their cake and not only eaten it, but gotten an extra slice with a butter-cream rosette on top.
So, once again, this Kavanaugh nomination is not about Trump. We know who he is, we know why he nominated Brett Kavanaugh. Once again, this is all about the elected officials of the Republican Party. They could have avoided this all -- and easily. And benefited. But once again, they caved to Trump and acquiesced to their lowest instincts to allow the disaster of a nominee to head towards a lifetime appointment on the Supreme Court.
This is about the Republican Party. Again.
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Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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