Why Trump Won’t Withdraw Kavanaugh Nomination Now

(Bloomberg Opinion) -- As of the lunch break in Thursday’s Senate hearing on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, it seems as though Republicans’ worst fears are being realized: Christine Blasey Ford is highly credible in describing her alleged sexual assault by the teenage Kavanaugh. Nothing in the ineffectual questioning by sex crimes prosecutor Rachel Mitchell did anything to shake her story.

Kavanaugh, who hasn’t yet testified as of this writing, will probably also seem credible. But that may not matter to the handful of persuadable Republican senators who will determine the outcome of the confirmation vote, including Susan Collins and Lisa Murkowski. In the face of a highly believable witness, it may simply be too difficult for them to vote for confirmation.

In consequence, you might think it’s obvious that President Donald Trump should withdraw Kavanaugh’s nomination and substitute another nominee, such as Judge Amy Coney Barrett, who was on his short list.

But because this is Trump, the usual political rules don’t apply.

Essentially, no matter what happens in Kavanaugh’s testimony, Trump isn’t going to withdraw his nomination. The president is almost certainly going to let the nomination play itself out, and will wait for Senate Republicans to reject or confirm Kavanaugh, rather than taking an active role.

Trump needs to avoid alienating his base. In particular, Trump can’t afford to alienate the men who either identify with or are at least sympathetic to men like Kavanaugh — and Trump — who are accused of sexual misconduct. Withdrawing Kavanaugh’s nomination would feel like a betrayal to them.

Remember that, in his news conference Wednesday afternoon, Trump free-associated between the allegations against Kavanaugh and the allegations against him. For Trump, what vindicated him was the fact that he was elected.

In the light of Trump’s political interests and own experience with sexual-misconduct allegations, his most logical move is to allow Kavanaugh’s nomination to go to a vote on the Judiciary Committee. If the confirmation passes on partisan lines, Trump will then let it subsequently to go to a vote in the full Senate — even if it becomes clear that it will fail.

Once the nomination is before the Senate, Trump can just refrain from pushing hard on the swing voters. If the nomination is voted down, Trump will then nominate someone else, and urge a rapid confirmation process.

According to conventional wisdom, a president shouldn’t want his nominee to be voted down, especially by Republican senators who break ranks. That looks like a failure of party discipline, and such failures are supposed to be costly to the party that (for the moment) controls Congress as well as the presidency.

But the conventional wisdom isn’t as important to Trump as it is for him to avoid sending a message to his base that he is gone soft in his culture war against what his base thinks of as liberal political correctness. Publicly withdrawing Kavanaugh’s nomination would mean giving a victory to #MeToo and the Democratic Party. Trump won’t want to do that, no matter what other conventional gains there might be.

Trump’s election has created the perception, accurate or otherwise, that the way to win is to keep the base excited and active. And the base won’t want Kavanaugh’s nomination withdrawn, even if the base finds Ford’s story to be credible.

The bottom line is: Don’t expect Trump to withdraw Kavanaugh’s nomination — even if the president has lost confidence in the possibility of confirmation.

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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