The Case For Abandoning Brett Kavanaugh

President Trump's grand bargain with his evangelic base - a bargain that roughly translates to votes-for-SCOTUS nominees - is in jeopardy just five weeks before a crucial mid-term vote. With a fourth and fifth (albeit anonymous) woman coming forward with a more-contemporary accusation against Trump nominee Brett Kavanaugh, the federal judge's odds of being confirmed before lawmakers embark on their October campaigning are seemingly shrinking by the minute.


Trump during a press conference last night once again stepped up to defend his nominee, accusing Kav's accusers of participating in an organized smear campaign "con job" to sink his nomination. But despite Trump's steadfast rhetoric - and a growing body of evidence that would repudiate the allegations of his initial accuser, Dr. Christine Blasey Ford - rumors about his growing dissatisfaction with Kavanaugh have begun to take root.

And with doubts metastasizing (fueled in part by President Trump saying he will "see what's said" with the hearing) about whether Kav can bring the same fortitude to bear on Thursday that was displayed by Justice Clarence Thomas during the Anita Hill controversy...

...Pundits are beginning to speculate about what Trump might do if backing Kavanaugh becomes too much of a political liability, or if the opposition of Maine Sen. Susan Collins or some other rogue Republican (possibly Arizona Sen. Jeff Flake), effectively sinks his nomination.

Fortunately for Trump, the president does have another viable alternative who would have a strong chance of being swiftly confirmed. And what's worse for Trump's political opponents, this candidate would seemingly check all the boxes allowing her to appeal to Republicans and resist smear attempts by Democrats. That's because not only is this candidate extremely conservative, they are also a woman.

As FT US political columnist Janan Ganesh writes in a column published Thursday, Trump's runner-up for the SCOTUS nod - federal judge Amy Coney Barrett - may not have as extensive a history of court ruling (something that was heavily weighed by the Federalist Society members who ultimately selected Kavanaugh), but she boasts more populist bona fides that would likely resonate more fully with Trump's base.

Amy Coney Barrett is a southerner who attended a mid-western law school. Of her seven children, two are Haitian adoptees. The current Senate thought her fit as a circuit judge just 11 months ago. She does not have much judicial experience but then her opponents do not have much of a "paper trail" to scrutinise. What Democrats know - or infer - is that such a fervent Catholic would menace Roe v Wade, which forbade states from prohibiting abortion, and Obergefell v Hodges, which secured same-sex marriage throughout the US. She is no liberal’s idea of a Supreme Court justice. Nor mine. Nor, I wager, Mr Trump’s. But the political reptile in him must see that no judge would be trickier for Democrats to oppose and electrify his own voters quite as much.

While Kav is a product of elite East Coast institutions (Georgetown Prep, Yale the George W Bush Administration), Barrett is a southerner who attended a midwestern law school, and her strong religious convictions would likely establish her as a menace to Roe v. Wade and Obergefell v. Hodges (the ruling that legalized Gay Marriage throughout the US). Indeed, while abandoning Kav and switching to Barrett risks turning the midterms into a referendum on her nomination, selecting the right's first female SCOTUS contender since 1981 would transform the Kavanaugh scandal into a pyrric defeat for the president.

To be sure, there are other risks:

There are risks. Unless she were confirmed in a rush, the midterms would become, in part, a referendum on Ms Coney Barrett. Even if the Republicans retain control of the Senate, which is less certain than it was, the freethinking likes of Susan Collins might vote against her. A second defeated nominee would constitute not just a farce but the end of Mr Trump’s judges-for-votes bargain with evangelicals. He might curse the Federalist Society and other conservative judicial candidate-vetters, but the reputational damage would be his.

But he may have no good options. As soon as Ms Ford came forward, he was choosing between lesser and greater evils.

Still, given the uproar over Kavanaugh's nomination and the risks of Trump alienating women so soon before a mid-term vote (though, to be sure, he still won a greater share of white women voters during the 2016 campaign), making a late-game switch to Barrett is looking like an increasingly more plausible alternative.