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Speaking the unspeakable—what happens if Kavanaugh withdraws?

Earl O. Hutchinson

The common refrain whispered and publicly uttered about Brett Kavanaugh withdrawing from SCOTUS consideration goes like this. If he withdraws all Trump will do is pick another right-wing hard case for the bench. And with sex now dominating the thinking and conversation about SCOTUS picks, the next pick would be a woman.

That may be true. The Federalist Society and the Heritage Foundation have done their jobs well and handpicked some of the most far right legal ideologues one could imagine packing the federal judiciary and the SCOTUS. Trump has dutifully cherry picked the names from the list both groups shoved in front of him. He punctuated that when he emphatically said, “This list is definitive, and I will choose only from it in picking future justices of the United States Supreme Court.”

Yet, there’s a problem with this neat scenario; in fact, there are several problems for Trump and the GOP with this. Time, time, time is one. The long game of Senate Majority Leader Mitch McConnell is to bum rush a hard-right mouthpiece to the high court to lock down the ultra-right’s long dreamed of 5th conservative vote on the Court for decades to come. Polls, public opinion, a full vetting process for a SCOTUS judge, and consulting with Democrats on the confirmation procedures, was waved aside in his dash.

However, there’s a short game that makes time a factor in this. That’s the looming mid-term elections. The GOP shakes with terror at the prospect that the Democrats could take back the House, and even more unthinkable that they could win back a majority in the Senate too. This could blow to smithereens the carefully constructed plan by the right to put the SCOTUS under its wrap for years. The Democrats could then do exactly what McConnell did for nearly a year with Obama’s SCOTUS pick, Merrick Garland. That’s sit on it.

McConnell’s canny, cynical, and carefully crafted crystal ball couldn’t foresee a Catherine Blasey Ford, a Deborah Ramirez, or who knows how many other women would pop up and upset the plan and the timetable for locking down the SCOTUS with their man.

If Kavanaugh is out, time now combines with another factor that makes it impossible for the GOP to pull this little stunt again and subvert the confirmation process. The media and more importantly the public are now paying attention to the drama about picking a SCOTUS judge and the importance of the position. And a lot of the public don’t like what they see.  Polls have shown that most respondents don’t want Kavanaugh on the high court. Many also demand that a SCOTUS pick be fully vetted and that any and all information about their past by revealed in order to know just who this person really is. That takes time too, and it also takes full transparency to ensure that that vital information is forthcoming and gets a full public airing.

A Kavanaugh withdrawal would also do something else that has at times been appallingly missing. It would fully arouse congressional Democrats. The big knock against them, especially Senate Democrats, is that they have been too gentile, compromising, and willing to make nice with the GOP. Senate Minority leader Chuck Schumer, for instance, took much deserved heat when he cut a deal with McConnell in August to allow several Trump’s rightist judicial picks to appellate court posts to be confirmed with not a peep of protest from the Democrats. This time around Democrats would likely pull out all legal and legislative stops to bog down the confirmation of a Kavanaugh replacement.

It’s no secret that number one on the Supreme Court wish list for the right is to nail Roe. v. Wade. Kavanaugh is viewed by the right as the point man for this. This stoked the fury of legions of women who recognized the mortal peril he posed. One of those women undoubtedly was Blasey Ford. That peril will not end if Kavanaugh withdraws. Women’s and civil rights groups, congressional Democrats, much of the public know that. They will be watching even more hawk-  like what any other SCOTUS pick would likely say and do on this issue. This means even more eyes on the SCOTUS pick and the confirmation process, and thus intense and sustained opposition.

A Kavanaugh withdrawal then does not mean Trump and the GOP can just plop another Kavanaugh type on the bench and get that pick quickly confirmed. It will ignite another time-consuming fight. This time, time won’t be on the GOP’s side.

Earl Ofari Hutchinson is an author and political analyst.

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