Cut Your Losses on Kavanaugh, Republicans

(Bloomberg Opinion) -- The woman who has accused Supreme Court nominee Brett Kavanaugh of sexual assault when they were teenagers is now speaking out. Given that most Senate Democrats already opposed him due to his conservative views and very partisan background, the question about confirmation becomes: What are Republicans, who were otherwise ready to support him, going to do about the situation? 

Republicans put Clarence Thomas on the Supreme Court decades ago despite Anita Hill’s credible claims of sexual harassment, and he is still a Supreme Court justice. Which means that if Republicans confirm Kavanaugh, the highest court in the land will be a living symbol that the law does not treat women as full citizens. 

That’s simply unacceptable. 

What I’d like Senate Republicans to say: They cannot know whether this accusation is true, false or somewhere in between. They do know such an act would disqualify Kavanaugh from this position and from any high office if it were true. Kavanaugh (they believe) was otherwise a perfectly acceptable nominee. But the injustice to the entire nation of confirming him if the claim is true — and the message that confirming him would send if it is — outweighs the injustice to him personally if he has been wronged. Kavanaugh can still return to serving in the high office he currently holds, and Republicans still have plenty of time to nominate and confirm a (conservative, partisan) replacement while the current Senate remains in session. 

Republicans should be holding themselves to an especially high standard on this, and not only because they have nominated and elected a president who has had serious accusations of sexual harassment and sexual assault leveled at him. Politicians of both parties have, over time, been guilty of terrible crimes. But Republicans have a particular obligation here because their public-policy positions have put them on the side of those who oppose equality and full citizenship for women, and because they nominate far fewer women for elected office. To be sure: Many Republicans (including many Republican women) strongly dispute that they are in any sense anti-woman. This, then, is an excellent time for them to demonstrate that they really do consider crimes against women to be major offenses. 

Republicans must also take into account the crass practical considerations. Justice Anthony Kennedy announced his retirement on June 21. So at the schedule they set, it would take just over three months from initial notice of vacancy to a confirmation vote. If they keep to their schedule, it will look as if they’re ignoring any evidence against Kavanaugh; if they delay in order to hold further hearings, they’ll risk having fewer than three months between a failed nomination and the end of the 115th Congress — with the election, Thanksgiving, Christmas and New Year’s all during that time. Three Republicans have already spoken in favor of a delay, but the truth is that for Republicans, there really is a rush to get a nominee confirmed quickly just in case the midterm elections go badly for them. 

In 1987, the nomination of Circuit Court Judge Douglas Ginsburg was derailed due to reports that he had used marijuana with his students while he was a professor. President Ronald Reagan withdrew the nomination, Ginsburg returned to his prestigious and powerful job, and Reagan’s next nominee was confirmed. It’s that Supreme Court seat that is vacant today. Republicans should, as they did in 1987, realize that there are plenty of young, well-qualified lawyers who can be counted on to rule the way they want the Supreme Court to rule — indeed, there are plenty of young, well-qualified lawyers who can be counted on to be more reliable justices for them than Kennedy was. They can quickly turn to one of those potential replacements. Or they can drag the nation through an ugly spectacle that at best will produce a victory that gives them nothing substantive while being symbolically poisonous — for the party and for the nation. 

1. Julia Azari on authenticity, partisanship and Barack Obama. Most political scientists (myself included) stop after knocking down foolish things people say about authenticity; Azari, as usual, bursts through that and finds something fascinating to say. 

2. Tatishe M. Nteta, Jill Greenlee, Jesse H. Rhodes and Elizabeth A. Sharrow at the Monkey Cage on the effects of having daughters on a man’s politics.

3. Elaine Kamarck and Alexander Podkul on the Democratic primaries and ideology

4. Dan Balz on the upcoming book from political scientists John Sides, Micheal Tesler and Lynn Vavreck on identity and the 2016 election

5. Good Dahlia Lithwick item (from Friday, but still very worth reading) about why Kavanaugh’s accuser wanted to remain silent.

6. David Leonhardt on myths about the Democrats from this year’s primaries.

7. The Lawfare team on Paul Manafort’s guilty plea.

8. And Philip Klein argues that we’re going to have a normal presidential nomination year in 2020. Plausible! 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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