Smart money says Kavanaugh won’t be confirmed. Should his nomination be withdrawn?

Smart money says Kavanaugh won’t be confirmed. Should his nomination be withdrawn?

The allegations against Supreme Court nominee Brett Kavanaugh are probably false, a last-minute smear. The National Review notes that there are numerous problems with the allegations of Dr. Ford. For example, “All four of the people named by Kavanaugh’s accuser” as present at the scene have now “said either that Kavanaugh is innocent of all charges, or that they have no recollection of his doing anything — anything — wrong. Put as simply as can be, there is nothing in the testimony of any of the named witnesses that corroborates, supports, or even implies Dr. Ford’s allegations. Of the five people who were supposedly at the party, only the accuser has suggested misconduct,” and she “remains the only person within the saga who has not subjected herself to an oath.” As J.E. Dyer recently discussed in her blog post, a subsequent allegation is even weaker and less credible.

But he probably won’t be confirmed to the Supreme Court. At “the odds-making site PredictIt, shares of Kavanaugh becoming the next Supreme Court justice have dropped 4 cents to 32 cents, compared to 68 cents for his nomination failing.”

Kavanaugh was not terribly popular with the American public even before the allegations — the public was evenly split about whether he should be confirmed. Now, polls show 50% of Americans oppose his nomination, versus only 40% who support it. He is less popular than any nominee who has ever been confirmed since the advent of such polls.

Republican senators from swing states and Democratic-leaning states are no doubt very aware of those polls. Democrats will try to use public opinion about the Kavanaugh nomination to defeat swing-state Republicans and take over the U.S. Senate, which the GOP currently controls by a narrow margin of 51 to 49. Legal commentators expect a Democratic-controlled Senate to block any Republican judges from being confirmed to the Supreme Court and federal appeals courts, leaving the federal judiciary understaffed.

Whether or not his nomination is withdrawn, Donald Trump should name a back-up nominee now in case Kavanaugh’s nomination fails (as Yale law professor Akhil Amar has suggested). That way, a conservative judge will be able to fill the Supreme Court vacancy as soon as possible. Naming a back-up choice will give senators a chance to vet that judge and swiftly confirm him or her in its 2018 lame-duck session if Kavanaugh’s nomination fails. Federal appeals court judges Amul Thapar and Raymond Kethledge are at least as conservative as Kavanaugh, and probably more confirmable.

The allegations against Kavanaugh are unfair because they lack basic details, such as the date when and place where the assault allegedly occurred. An innocent person cannot provide an alibi defense without knowing the date and location in which he is accused of committing wrongdoing.

It is deeply suspicious that Senate Democrats suddenly seized on these allegations against Kavanaugh at the last minute. This was an accusation they privately thought so little of that they had sat on it for months, without disclosing its existence to Kavanaugh so he could rebut it. The Democratic senator who originally received the allegation never confronted Kavanaugh about it, or even disclosed its existence, when she met with him. Clearly, she harbored her own doubts about it. Indeed, her staff had “once conveyed to other Democratic members’ offices that the incident was too distant in the past to merit public discussion.” But when it looked like nothing else would stop Kavanaugh from being confirmed, Senate Democrats, in a last-ditch tactic, seized on this allegation to try to torpedo his nomination.

Kavanaugh’s poll numbers will probably get worse due to hostile press coverage. As a lawyer pointed out, it is doubtful “if the media can assess Kavanaugh fairly, given their ideological bias against conservative justices and in favor of progressive politicians in past controversies, their willingness to peddle baseless rumors, and in light of the circus atmosphere that their slanted reporting has helped to create.”

Media coverage of conservative judicial nominees is often biased against them. This may reflect the fact that journalists overwhelmingly are progressives. The Washington Post, which has not endorsed a Republican for president since 1952, conceded last year that “most newsrooms tilt liberal/Democratic.” Some newspaper editors dislike conservatives in general. New York Times editorial page editor Andrew Rosenthal claimed it was difficult to find qualified conservative writers because so many are liars. He said that the “problem with conservative columnists is that many of them lie in print.”

Media bias is powerful in affecting public opinion. In 1991, at the conclusion of Supreme Court nomination hearings, two-thirds of Americans polled believed a conservative judge who had been nominated to the Supreme Court, not the woman who accused him of saying sexually offensive things to her. (FBI agents and most Senators also believed him, not her). But by late 1992, due to non-stop negative press coverage by liberal columnists attacking him, more believed her than believed him. Media bias changed their mind.

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Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is a retired attorney and author, who writes about politics.


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