More Facts Won’t Change Kavanaugh Votes. Only Politics Can.

(Bloomberg Opinion) -- Stuck. That’s where almost everyone seems to be when it comes to the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.

We’re in a week of pseudo-calm while the Federal Bureau of Investigation looks into allegations of sexual misconduct against President Donald Trump’s nominee. But let’s be honest with ourselves. It’s almost impossible to imagine anything emerging from the investigation that would make Kavanaugh’s opponents or supporters change their minds.

What’s true for most of us is surely true for the actual deciders, pro-choice Republican Senators Susan Collins and Lisa Murkowski. They aren’t going to be making up their minds about confirmation based on what the FBI does or doesn’t turn up. They are going to vote based on a delicate but simple political calculus: Is it safer for them to alienate the vast majority of the Republican Party by blocking Kavanaugh or to alienate moderate swing voters in their own states by confirming him? In that calculus, the facts matter barely at all.

Just about every Democrat I know was prepared to oppose Trump’s nominee even before that person was chosen. And for good reason: Senate Republicans’ refusal to vote on Judge Merrick Garland when President Barack Obama nominated him in 2016 cried out for payback.

Once Kavanaugh was chosen, his reputation as a movement conservative gave further reason for liberals and moderates to oppose him. That’s before you even get to his experience as an enthusiastic member of independent counsel Ken Starr’s investigation of Bill Clinton and as a George W. Bush staffer.

The early part of the Kavanaugh hearings confirmed Democrats in their views, as they perceived Kavanaugh to be evasive and even untruthful.

The allegation by Christine Blasey Ford that Kavanaugh assaulted her in high school didn’t transform Democrats so much as it gave them their first inkling that it might actually be possible to defeat Kavanaugh — even if that might mean his replacement with a more conservative nominee confirmed by the lame-duck Senate later this year.

And further FBI investigation won’t move the needle for Democrats either. Consider all the “I believe Dr. Ford” declarations that are already out there. That belief is closely connected to the entirely reasonable principle promulgated by #MeToo that women who report sexual abuse should be presumed to be telling the truth.

Notice that the #MeToo principle isn’t going to be disturbed by anything the FBI finds. If the witnesses interviewed by the FBI about Ford’s allegation continue to say they don’t remember the evening or the incident, that wouldn’t disturb anyone’s faith in Ford — nor should it, by the lights of those who already believe her.

On the other side, among those who support Kavanaugh’s confirmation despite what they’ve heard, new evidence probably isn’t going to make much if any difference either. Many of Kavanaugh’s supporters likely believe that Ford is telling the truth. But they don’t think that the allegations, even if true, should keep Kavanaugh off the court. That might be because the events occurred many years ago when he was in high school, and are outweighed by his subsequent life. Or it may be that some people think changed mores should be taken into account, and that his behavior was so common in the 1980s that it shouldn’t be disqualifying. Lots of people who think those things about the assault on Ford probably think the same about Deborah Ramirez’s charge that Kavanaugh exposed himself to her at a freshman year college party.

The fact that not many people — and practically no politicians — are openly saying that Kavanaugh should be confirmed even if Ford and Ramirez’s allegations are true shouldn’t distract us from the probability that many Kavanaugh supporters feel this way. In today’s environment, it would be costly to say this explicitly.

Indeed, my account of what lots of Kavanaugh’s supporters (especially men) are probably thinking helps explain why they don’t seem to be much disturbed by his unconvincing explanations of his various yearbook entries. From the standpoint of a lot of Kavanaugh supporters, the whole encounter between the judge and the Senate Judiciary Committee is a kind of charade. The Republican senators get to express outrage at the content of the alleged conduct while Kavanaugh issued denials that give the senators cover to vote in favor of his confirmation. The answers about the yearbook are thus functionally equivalent to Kavanaugh’s denials of Ford’s allegations.

Of course, it’s just possible that there are a few moderate centrists out there who really, really wanted to support Kavanaugh but can’t live with their consciences in the light of the whole course of events. Benjamin Wittes, the editor in chief of Lawfare and one of the vanishingly small number of true centrists in the Washington establishment, seems to be one based on the evidence of his earnest explanation in the Atlantic of why he can’t support the nomination anymore. But even Wittes wrote his column before the FBI investigation was complete.

All this brings us back to Collins and Murkowski, and the all-important question of how they will vote. As archetypal moderate Republican women, they are often assumed to vote based on the way other moderate Republican women feel — a bit like how Justice Sandra Day O’Connor’s jurisprudence seemed so often to channel the median white Republican centrist woman.

Yet in a brutal national political fight like this one, Collins and Murkowski don’t have the luxury of following their instincts. Both could and would be challenged in primary elections from the right if they defect from their party now. Both could lose swing women voters if they vote to confirm. Either way, the facts only matter if somehow those facts would change the calculus.

Barring some radically new revelation, the facts won’t make the difference. My instinct is still that the weight of the party will prevail in the senators’ calculus. But if doesn’t, it won’t be because we know so much more next week than we do today.

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

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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