Simple question for Trump: Are you willing to risk losing a Supreme Court confirmation battle?

This is what it boils down to, no?

If he isn’t willing to risk losing on confirmation, why isn’t he? Trump being Trump, the idea of failing in a test of strength in the brightest possible political spotlight must be instinctively terrifying. But if he takes a breath and steps back, he’ll realize there’s opportunity in it. Having Barrett or Kavanaugh (the two nominees most likely to have confirmation problems) get borked would be infuriating to many Republican voters in states where Democratic incumbents are on the ballot this fall. The entire GOP leadership beginning with Trump would hang the nomination’s failure around the necks of Joe Manchin and the six or seven other vulnerable red-state Dems before November. And while having the seat remain open through Election Day would be tremendously galvanizing for both parties’ turnout, it’d probably do more for the GOP since Democratic enthusiasm is already so high. It’s conceivable that watching Kavanaugh get nuked will flip more Senate seats from blue to red than would flip if a safer pick like Kethledge is the nominee and is easily confirmed.

And if that happens, Trump will have a redder Senate available to confirm the second nominee. Trying and failing now with Kavanaugh could make Barrett’s confirmation possible in January. Kethledge’s confirmation would be a cakewalk. Essentially, you’d have traded a few months of Kennedy’s seat remaining open after the Court’s new term begins this fall for an excellent justice *and* a more Republican Senate.

If Trump is willing to risk losing on confirmation then I fail to see what the argument is against nominating Barrett, the base-pleasing choice. Unlike Kavanaugh and Kethledge, her paper trial is thin enough that she’s encountered no resistance on the legal merits from the right over the past two weeks. That’s what makes her risky — her jurisprudence is an unknown quantity, although given her faith and her Scalia pedigree, we all have a strong sense of which direction it’ll point. The big knock against her is simply that Collins and Murkowski might not vote for her. But why not call their bluff? It’s not like Barrett’s going to show up to the hearing in a t-shirt with “ROE” with a big “X” through it on the front. She’ll affirm that precedents are extremely important, if not quite ironclad, in which case how are Collins and Murky supposed to vote no? Offhand I can’t think of the last time a nominee with a *thin* paper trail was borked. Robert Bork himself had a very long one, as does Kavanaugh, which is why McConnell is worried about the chances of confirming him. But Barrett’s been on the bench less than a year. Unless there’s something horrifying in her legal academic work, what reason will Collins and Murkowski give for voting “no”? “She’s too Catholic”?

And again, if that happens, there’s a potential electoral silver lining for the GOP:

As I write this at a little before 3 p.m. ET, there’s no still no word about Trump having made his choice. I’ve heard rumors that one candidate has been eliminated but they’re just rumors. If I’m right, though, that a borked nominee increases the odds of Republican victories this fall then there’s really little reason for Trump to be agonizing over the pick. Just go with the right’s favorite, Barrett. If she’s confirmed, great. Republicans will be in raptures. If she isn’t, he’ll have months to deliberate on the next nominee and likely will face a more forgiving environment on confirmation next time. Adding Brett Kavanaugh to the Court and a few more Republicans to the Senate next year would be a pretty sweet consolation prize for losing a single confirmation battle this fall.

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David Strom 12:01 PM on October 07, 2022