By Robert Romano
The GOP Senate has one very important job, and that is to confirm Judge Brett Kavanaugh to the Supreme Court, maintaining the balance of power on the nation’s highest court.
When Justice Anthony Kennedy retired, it was a gift to Republicans, giving them an opportunity to confirm a replacement that would be nominated by a Republican president and confirmed by a Republican Senate.
To highlight the importance of Kavanaugh’s confirmation, one need only look through the prism of time to see what lies ahead should he be delayed or defeated. If Kavanaugh is held up or voted down, it will be because a few — and that’s all it will take — Senate Republicans who sabotaged their own party by scuttling the confirmation.
If Senate Republicans fail here and now, there likely won’t be enough time to confirm an alternate to Kavanaugh before 2019. It would be a betrayal of Republicans voters who wanted a constitutionalist majority on the court to interpret the law as written, and could risk suppressing conservative turnout in the 2018 midterm elections in November.
Put simply, the GOP simply cannot afford to lose the Kavanaugh confirmation.
Senate Democrats, should they wrest control of the Senate away in November, are already citing the Merrick Garland precedent to say that no GOP nominee should be confirmed with a Democrat-controlled Senate, and that the 2020 presidential election should be a referendum on the Supreme Court, leaving the court split four to four indefinitely.
Sen. Mazie Hirono (D-Hawaii) has already said as much to Politico, who threatened to leave the seat open until 2020: “I think we’ve had those kinds of vacancies before, and we certainly had over a one-year vacancy with Merrick Garland. So the world does not come to an end because we don’t fill all of the nominees.”
The only nominee who might be confirmed at that point would be one chosen by Sen. Chuck Schumer (D-N.Y.), who at that point would be Senate Majority Leader.
Again, Senate Republicans were elected to do one very important thing, confirm constitutionalist judges and at a minimum maintain a constitutionalist majority on the Supreme Court. Parties tend to lose midterm elections when they deal themselves defeats legislatively and disenfranchise their own supporters.
Exhibit A is the Republican failure to repeal and replace Obamacare. A small handful of Senate Republicans held up the legislation, and the outcome was extremely dispiriting to Republican voters.
Republicans are defending nine Senate seats: in Arizona, two in Mississippi, in Nebraska, in Nevada, in Tennessee, in Texas, in Utah and in Wyoming. They should win them all — and compete to pick up seats in the nine states that Democrats are defending that Trump carried in 2016 — but after the loss of the Alabama Senate seat last year, and particularly if Kavanaugh is defeated because Senate Republicans betray their constituents, there might be no safe seats.
In short, losing the confirmation of Kavanaugh would be devastating to the Republican Party, sending it into utter disarray as the Trump administration and the Senate scrambled to get somebody else confirmed before 2019, undoubtedly in the lame duck session. They cannot afford failure.
Especially since, on balance, Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) actually have a very good story to tell voters come November about getting judges confirmed.
So far, 68 judges including Neil Gorsuch nominated by President Donald Trump have been confirmed by the Senate to district courts, appeals courts and the Supreme Court. Kavanaugh would be number 69. To stay on pace — an average of 163 judges are confirmed each presidential term going back to 1952 — the Senate would need to confirm about 10 more before the end of the year.
Confirming Kavanaugh would keep them on track and instead possibly deal a blow to Democrats’ enthusiasm come November — especially if a few red state Senate Democrats vote in favor of Kavanaugh in a bid to save their own skins.
Failure to confirm Kavanaugh on the other hand would nullify the Senate GOP’s sole accomplishment, negating the argument for a Republican majority and effectively overturning the outcome of the 2016 elections. Republicans can ill afford such an outcome on the eve of the midterms, making next week’s Senate Judiciary Committee hearings and vote of paramount importance. For the GOP, it’s Kavanaugh or bust.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.