I certainly hope that Senate Majority Leader Mitch McConnell has better things to do with his time than read my articles. However, in case you are Mitch and you are reading this, I have some free advice for you: Don’t let Brett Kavanaugh come to a vote. This isn’t for selfish reasons, mind you; I’m certain you won’t be swayed by my belief that Kavanaugh would make a terrible Justice. After all, we have very different political philosophies (I being a fairly progressive Democrat, and you being a fairly conservative Republican). No, this isn’t about me, it’s about you. Kavanaugh is dead weight, and this process looks bad for you, your party and the midterms. It would be in the best interest of the Republican Party to drop him and force the President to nominate someone else.
Mitch, let’s, for a moment, ignore everything about which we may disagree on Kavanaugh. Let’s assume, for a moment, that I am a conservative, which, for the record, I am not, and that overall I find Judge Kavanaugh’s legal decisions agreeable and acceptable, which, for the record, I do not. Let’s also assume, for a moment, that Kavanaugh is truly innocent of both sexual harassment accusations that have been levied against him. Even then, letting his nomination go to a vote would be a dangerous risk, both for you and for the country. Confirming someone who has been accused by multiple people of sexual misconduct would be dangerous and immoral. In short, it would be complete dereliction of your responsibility as a senator.
A lot of arguments has been made in the past few weeks about the legal concept of “innocent until proven guilty.” Senator David Perdue, for example, said of the accusations against Kavanaugh, “This is a democracy. We have a judicial system. But we also have innocent until proven guilty” (The Christian Science Monitor, “What Kavanaugh Case means for innocent until proven guilty,” 09.24.2018). I believe in that idea, not only as it pertains to the law, but as it pertains to my personal life. I too have deep concern that defendants no longer have anyone to defend them and truly believe that it’s been a long time since the United States has adhered to that ideal. An accusation alone is not enough to throw Kavanaugh in prison.
Still, the Senate is not a courtroom, and being denied one of the most sacred jobs in the republic is not the moral equivalent of a 30-year prison sentence, being a registered sex offender for the remainder of your life or even expulsion from your college or university. It does not prevent him from serving in his current position and does not prevent him from making a stable income. Brett Kavanaugh is not owed a job, and the standard for giving him a lifetime appointment to the Supreme Court of the United States should not be the same as the standard for convicting him of a crime. The Senate is a partisan entity that is not well-equipped for fact-finding. It is reasonable for the Senate to decide that, in light of the accusations, they should deny Kavanaugh this position and force Trump to give it to someone equally qualified.
But let’s, for a moment, discount morality. Considering the polls, it doesn’t make sense to move forward on Kavanaugh. The American people are split on who they believe: a Fox News poll showed that only 30 percent believe Kavanaugh, while 36 percent believe Ford. The rest aren’t sure (CNN, “Americans are split on whether they believe Christine Ford or Brett Kavanaugh,” 09.24.2018).
Americans are somewhat more united in terms of where they stand on Kavanaugh as a nominee overall. A Fox News poll showed that only 40 percent of Americans would vote to confirm Brett Kavanaugh as of September 16, down from 45 percent in August. Fifty percent
of Americans would vote not to confirm Judge Kavanaugh, up from 46 percent in August. Most concerning for you, Mitch, is that in counties where Hillary Clinton and Trump were within 10 points, 35 percent would confirm him while 54 percent wouldn’t (Fox News, “Fox News Poll: Record numbers of voters oppose Kavanaugh nomination,” 09.23.2018).
With the midterms a little more than a month away, the Republicans have very little to gain by allowing this go forward. Either Kavanaugh is confirmed, galvanizing progressives to vote out their local Republican in November, or Kavanaugh is rejected, in which case Trump loyalists blame Senate leadership and, frustrated, stay home—or worse, vote third-party. It would put you at a greater risk of losing the Senate this year, something you already think is likely to happen (Business Inside, “Mitch McConnell predicts Republicans will lose seats in the midterm elections,” 02.18.2018).
This problem will only be compounded in the long term. Susan Collins, the Republican Senator from Maine, would suddenly find herself in serious danger come 2020 should she vote to confirm, as polls show 47 percent of her constituents would be less likely to vote for her if she does. That number jumps to 53 percent if Roe v. Wade is overturned (The Hill, “Poll: Voters less likely to support Collins if she votes to confirm Kavanaugh,” 08.21.2018). Lisa Murkowski would also be at risk next time she’s up for re-election, as 63 percent of Alaskans support Roe v. Wade, including 72 percent of the independent voters that generally provide her base support (Anchorage Daily News, “Pressure is on Murkowski over Kavanaugh vote,” 08.28.2018).
Even if the Senate confirmed Kavanaugh to the court, he would be little more than another conservative vote, an advantage that the Republicans could achieve by nominating almost anyone else. Chief Justice John Roberts is infamously concerned about the image of the Supreme Court (CNN, “In partisan times, chief justice worries about the court’s image,” 10.3.2017), dislikes ugly confirmation battles (The New York Times, “John Roberts Criticized Supreme Court Confirmation Process, Before There Was a Vacancy,” 03.21.2016) and pays such close attention to media coverage of court proceedings that some have said they influence his decisions (CBS News,”Roberts switched views to uphold health care law,” 07.02.2012). Roberts does not like it when the Supreme Court appears controversial, as he fears that it undermines the court’s integrity. Similar to Supreme Court Justice Clarence Thomas, Kavanaugh would likely be sidelined in order to minimize the damage to the court’s image.
Mitch, this is a lose-lose scenario for you, but there is a way out: Don’t let it come to a vote. By not allowing him to come to a vote, you would force Trump to pick someone who will likely be a more popular nominee and minimize the damage. Instead of blaming all Republicans, Kavanaugh’s supporters would only blame you, and while you have two years to explain your decision, it can put the Republicans in Congress on a better path for victory. It won’t be yet another issue for Democrats to use to mobilize our base, and it could motivate Trump voters to elect what they consider good Republicans who supported Kavanaugh and the President.
Most importantly, you would be doing the right thing for this country. When all is said and done, Kavanaugh is a bad choice to be a Supreme Court Justice, even among possible conservative justices. You are not under any obligation to go with Kavanaugh, and your duty as a United States Senator compels you to ensure that we have the best candidate possible. You have a rare opportunity to do something that is honorable both for you and for your country. The only thing you have to do is take it.