It’d be bad strategy if they did have a Plan B. (Publicly, at least.) Not only would it demoralize righties, who would see it as a draft of surrender terms in what’s now a major culture-war battle, it’d signal to Flake, Collins, and Murkowski that maybe borking Kavanaugh wouldn’t be so bad. If there’s a new nominee already warming up in the bullpen, might as well pull the guy on the mound who’s struggling.
What they’re saying: “He’s too big to fail now,” said a senior source involved in the confirmation process. “Our base, our voters, our side, people are so mad,” the source continued. “There’s nowhere to go. We’re gonna make them f—ing vote.[Joe] Manchin in West Virginia, in those red states. Joe Donnelly? He said he’s a no? Fine, we’ll see how that goes. There will be a vote on him [Kavanaugh]. … It will be a slugfest of a week.”
“There’s no time before the [midterm] election to put up a new person,” a White House official close to the process told me.
What if the new nominee also ends up having a #MeToo problem, wondered one of Axios’s sources? That’s reason enough for Trump to choose a woman to replace Kavanaugh if a replacement is needed, but the right’s preferred candidate for that role may be a nonstarter:
There’s been plenty of speculation that, after the elections, Trump could put up a female judge such as Amy Coney Barrett, who was on his shortlist last time. But two sources involved at a senior level in Kavanaugh’s confirmation told me they worry Barrett might end up being “too conservative” for the pro-choice Republican senators Susan Collins and Lisa Murkowski.
Trump could use the centrists’ fear of Barrett as leverage against the moderate holdouts on Kavanaugh. If at the end of the week Collins and Murky are leaning no, he could dial them up and say, “Barrett will be the next pick. If you don’t want to vote for her, that’s your prerogative. But she’ll be the nominee.” Dare the two of them to bork not one but two Republican SCOTUS nominees, with the base already furious at them for sinking Kavanaugh.
In fact, it occurs to me that this might be the only way Barrett ends up on the Court. (Unless the GOP adds Senate seats in November, of course.) She may have been a nonstarter for Collins and Murkowski in July, but if Kavanaugh blows up over a #MeToo crisis and Trump counters with a young woman nominee whom the GOP base is excited about? The moderates wouldn’t dare go after her over Roe under these fraught circumstances, with Republican voters irate at the Kavanaugh process.
What if they try to get Barrett through during the lame-duck session, though? The only reason to do that instead of waiting for January would be if the midterms went badly and the Senate was about to change hands from Republican to Democrat. But in that case, notes Philip Klein, Collins might oppose confirmation for any nominee:
For Democrats to win control of the Senate, it would mean that Republicans would have been eviscerated. Under such conditions, even if McConnell wanted to, I’m not sure that he could convince fence-sitting Senators such as Susan Collins to go along with the effort. Collins, to be clear, would be up for reelection in 2020 in a presidential election year. Already under significant pressure to vote “no,” she may buckle after witnessing a total slaughter. Furthermore, vulnerable red state Democrats whose votes are now in play, would be off the hook after Nov. 6th, having likely survived. So it could be a tough sell.
It’d be fine for her to say “no confirmations during the lame-duck session” if SCOTUS politics weren’t already cutthroat to the point of derangement. But because they are, there’ll be a counterpressure weighing on her: If Democrats retake the Senate on Election Day, it’s highly likely that they’ll refuse to confirm any replacement for the Kennedy vacancy for the final two years of Trump’s term as payback for Merrick Garland. Collins’s choice isn’t, in other words, between confirming a conservative nominee during the lame-duck session with a Republican Senate or a more moderate nominee in January with a Democratic one. Her choice is between confirming a conservative during the lame-duck session and confirming no one. Would she be willing to bite the bullet on Barrett given those stakes?
What she’ll probably end up doing is trying to extract a pledge from Schumer that he won’t hold the seat open indefinitely as majority leader but will in fact hold hearings on Trump’s next nominee. He might be willing to agree to that, believing that he and his caucus will simply vote down whomever Trump nominates. The seat will remain open indefinitely, in other words, but with the Senate going through the motions of considering and then defeating each nominee in sequence instead of the cold-shoulder approach that McConnell used with Merrick Garland.
Of course, there’ll be counterpressures in that case too:
You probably wouldn’t get a Barrett confirmed. But you probably (?) could get e.g. a Hardiman and/or you could cause a lot of internal dissention within the Democratic caucus. It’s not as good as getting a staunch conservative. But you still have some optionality.
— Nate Silver (@NateSilver538) October 1, 2018
Manchin and most other red-state Dems would be many years away from facing voters again under Silver’s scenario, though. They could vote with their party for the next two years and then, if Trump won reelection in 2020, try to make it up to their Republican constituents by declaring that voters had settled the issue and it was time to confirm one of his picks to the seat. I don’t think Jones, who’s up in 2020, is likely to bow to pressure either. Jones is voting no on Kavanaugh this week despite heavy right-wing support; I think he’s already resigned himself to the fact that he won’t be reelected and will just do what he likes while in office instead.
One other point via Steve Bannon, who said this to Politico: “There’s no walking this thing back… You get Kavanaugh, you’re going to get turnout. You get turnout, you’re going to get victory. This is march or die.” That’s quintessential Bannon in some ways (e.g., the martial metaphor for politics) but unlike him in one important way. Bannon’s “base-plus” strategy for the midterms is to remind Republican voters of all the things they stand to lose if Democrats retake Congress. Exhibit A in that case is Trump himself: They’re gonna impeach him, Bannon has been warning people. Tell voters that the enemy is coming for the things they hold dear, like the MAGA-in-chief, and they’ll get off the couch on Election Day.
His advice about Kavanaugh takes the opposite approach, though. Confirm Kavanaugh, he says, or Republicans won’t turn out. The truth is, or should be, the opposite if you take the Bannon strategy seriously: If Kavanaugh is confirmed then the enemy has been defeated, so there’s no reason to turn out. If, however, the enemy succeeds in voting him down and suddenly a high-stakes Supreme Court vacancy is on the line in the midterms, with a real possibility that it’ll be years before a Republican president gets to fill it, that’s a powerful motivator to vote. Bannon’s arguing that “confirmation = turnout” right now because that’s a way to encourage Collins and Murkowski to vote yes, but if they end up voting no, rest assured that he’ll be quoted somewhere the next day insisting that the vacancy itself will produce heavy right-wing turnout as Republicans scramble to save the seat.
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