The worst option of the GOP is if Kavanaugh withdraws – and soon

Brett Kavanaugh has never been a popular Supreme Court candidate – and he has probably become even more unpopular following allegations made earlier this month by Christine Blasey Ford that Kavanaugh had attempted to sexually assault him while they were both in high school. No one of this unpopular has ever been confirmed to the Supreme Court; the only previous nominees who scored as poorly as Kavanaugh either withdrew their names (Harriet Miers) or lost their confirmation vote (Robert Bork). And this whole survey was done before at least two other accusations Kavanaugh – and before the testimony of Ford and Kavanaugh before the Judiciary Committee of the Senate, which is scheduled for Thursday.

President Trump and Congressional Republicans are not afraid to carry out unpopular actions in pursuit of their ideological goals. Last year, they spent several months trying and failing to repeal Obamacare, even though these efforts were extremely unpopular. And they passed a very unpopular tax bill at the time of its adoption, although some have since been improved. The Supreme Court is at least as much a priority for Republicans.

The difference on Kavanaugh is that there are several other Conservative candidates who could replace him – and who may have been better choices in the first place. In other words, you would think that the majority leader in the Senate and Senate, Mitch McConnell, would have better options than to roll the dice with Kavanaugh. Amy Coney Barrett, for example, a 7th Circuit Judge and one of Trump's finalists when Kavanaugh was chosen, has several advantages from the GOP's point of view. She would potentially more conservative as Kavanaugh, at least on issues such as abortion; it has already been confirmed (at its seat) by the present Senate; and Republicans may not have to choose a woman while the four Conservatives of the current Supreme Court are all men.

Barrett also does not face multiple charges of sexual misconduct, as does Kavanaugh.

But there is a mid-term coming in six weeks. And according to the predictions of FiveThirtyEight, there are about 3 chances out of 10 that Republicans lose the Senate. Could Republicans really convince Barrett or another candidate? And if not, could they confirm it in the so-called "lame duck session" after mid-term but before the new Congress meets on January 3rd.

The answers are "probably" and "probably" – but the schedule becomes more difficult each day. On Tuesday morning, we will be 42 days from November 6th and exactly 100 days from the meeting of the new Congress. The current eight members of the Supreme Court took between 50 and 99 days to be confirmed:

This makes timing extremely interesting (and makes Republican complaints about democratic delays easier to understand). If Kavanaugh had to withdraw his name aujourd & # 39; hui, and Trump had to name someone else in his place tomorrow, the GOP could be able to confirm replacement before the mid-term – but the schedule would be tight and would require a faster confirmation process than for any current member of the Supreme Court.

The lame-duck session would be a safer bet, but it's not risk-free for the GOP. One of the problems is that they risk losing the Senate – to repeat themselves, there is about a 30% chance that this will happen. Since the Senate is a much heavier solution for the Democrats than the House, in scenarios where the GOP loses the Senate, they would probably lose the House by a wide margin; In our simulations, Republicans lose an average of fifty seats (!!) in scenarios where they also lose the Senate. The House does not have a say in the Supreme Court nomination process, but would the Republicans really want to advance a nomination after losing by such an overwhelming margin?

My guess is Probably yes – A seat on the Supreme Court is really important for them. But politics is uncertain; There are not really many recent precedents for a party that takes such a step during the lame session. And several Republican senators, having just seen their colleagues take a plunge in mid-term 2018, might be worried that such a vote would mean for their survival in 2020, when the Senate's map is tough enough for the GOP.

In addition, there is a chance that the next candidate will also have control problems. Historically, about 25% of Supreme Court nominations are obsolete, rejected, or withdrawn.

Here is the thing, though. The longer the GOP takes to replace Kavanaugh, the more serious the timing issues become for them. If, for example, Kavanaugh's confirmation process takes place for two weeks before being rejected or withdrawn, then Trump takes another two weeks to choose a replacement because the overall process has become so messy, so confirmation before the midterms would be extremely difficult. There might also not be enough time to seriously consider the new candidate before the duck-blade session, thus giving the Republicans less margin of error at that time.

So, why not just "get through" and vote to confirm Kavanaugh anyway, the allegations and all the rest aside? Although there is a good chance that McConnell bluffing, this seems to be the current plan, with McConnell having promised a vote in "the near future" on Kavanaugh and no accuser other than Ford should testify.

The problem is that it's a extremely live news story; Several new charges were filed against Kavanaugh over the weekend and debates over the credibility of Ford's allegations are still ongoing. It is unclear what would happen to Kavanaugh if further charges were to be upheld at the Supreme Court, but the possibilities include indictment and serious long-term damage to the reputation of the Court. to be paid mid-term. Even though the GOP was able to confirm Kavanaugh before mid-term this year, an overwhelming election could put the GOP in a much worse position to hold the Senate when other Supreme Court appointments will be held in 2019-2024 .

In other words, there are huge risks for the GOP to both confirm Kavanaugh and let the process unfold for several weeks – which means encouraging Kavanaugh to withdraw now, no matter how painful. .

There is another possibility, that McConnell – who would not have wanted Kavanaugh to be chosen in the first place – could rush into the process. in the hope that Kavanaugh will be voted (or forced to withdraw once it becomes clear that McConnell does not have the votes). At the time when Ford was Kavanaugh's only accuser, it had seemed like a pretty likely exit strategyThe hearings would be designed to allow Kavanaugh to save face, and perhaps to allow Republicans to feed some grievances with their base. But undecided GOP senators such as Susan Collins and Jeff Flake would find an excuse to oppose his nomination and his candidacy would be withdrawn. This scenario always seems to be a distinct possibility – but the fact that Kavanaugh's story is developing so rapidly, with the stakes that keep getting higher at each news cycle, could mean that McConnell engages in the same bluff he was hoping to keep his options open before.

I did not talk much about the potential electoral prospects of the GOP confirmation process, such as the potential increase in voter turnout, and the vote of vulnerable Democratic Senators like Heidi Heitkamp of North Dakota against Kavanaugh or another candidate. It's because I'm a little skeptical about them. Contrary to popular belief, it is not clear that grassroots voters value the Supreme Court as much as party activists and other "elites". And despite the predictions that Anthony Kennedy's retirement would help the GOP, the Republicans' electoral prospects have only gotten worse since (and they've had especially the poor polls in the last two weeks).

That being said, Kavanaugh's story has become unpredictable enough for his electoral effects to be quite uncertain, even if they are trending downward for the GOP. If I were a Republican member of Congress facing reelection in 2018 or 2020, I'd rather take my chances with Barrett than with Kavanaugh.