Top House Dem: Yes, we'll investigate Kavanaugh next year if we win a majority this fall

What, you thought the Kavanaugh wars were over?

They’ll never be over.

Although I’ll bet this is the last we hear for awhile from top Democrats about going after Kavanaugh next year. The rank-and-file will chatter about it for the next month; nothing soothes the soul after a bitter defeat like idle talk of revenge. But the Dem leadership knows its words will be used against them by Republicans, so it’ll be careful. Mention impeaching Trump to Pelosi and she’ll politely say she’s not interested and change the subject. She understands that that’s a topic likely to animate Republican voters. She won’t hand the GOP an easy attack ad.

Jerrold Nadler isn’t as cagey:

“It is not something we are eager to do,” Mr. Nadler said in an interview [about investigating Kavanaugh next year]. “But the Senate having failed to do its proper constitutionally mandated job of advise and consent, we are going to have to do something to provide a check and balance, to protect the rule of law and to protect the legitimacy of one of our most important institutions.”…

He said that if Democrats took power, he would expect the committee to immediately subpoena records from the White House and the F.B.I., which conducted an abbreviated supplemental background investigation into two of the misconduct claims. That document request would include communications between officials at both entities.

The committee would also seek to interview Judge Kavanaugh’s accusers and the dozens of potential witnesses they identified in recent days, most of whom were not contacted by the F.B.I. He said he would also call the F.B.I. director, Christopher A. Wray, to testify.

Nadler’s no random Democrat. He’ll be chairman of the Judiciary Committee if Democrats retake the majority this fall, well positioned to carry out these threats. Expect to be reminded of that, a lot, by Trump and other Republicans over the next five weeks:

Andy Surabian, a GOP strategist who ran the Trump Tower war room in 2016, tells us: “[T]o keep the base enthused through November 6th, Republicans must now turn the midterms into a referendum on Democrats attempting to impeach Judge Kavanaugh from the court.”…

“The threat of Democrats impeaching Kavanuagh creates the all-important ‘fear of a loss’ needed among Republican voters to keep them supercharged for the next five weeks. … Kavanaugh is rocket fuel to Republican voters.”

Well, we’ll see. This clusterfark has been fuel (jet fuel, maybe, if not quite rocket fuel) for Republican midterm enthusiasm. But that was when Kavanaugh’s confirmation was in doubt, when it looked like the late hit on him, replete with an assist from Michael Avenatti, would succeed in killing his nomination. The anger was immense. Now victory is in hand. The anger will ease. Which side is more likely to have a fire in its belly through Election Day, the one that just scored a major victory or the one that thinks a rapist was just installed on the Court and desperately wants to prevent Trump from filling another vacancy?

You can understand, then, why GOPers are about to shift to a “they want to impeach Brett!” message. The victory isn’t a victory. We can still lose! Unless you vote.

That said, there are reasons to believe that Nadler’s talking smack and that the new Dem majority won’t come after Kavanaugh after all:

1. The cloud of suspicion over Kavanaugh among left-leaning Americans is a useful political asset to Democrats. They can now discredit any 5-4 majority he’s part of, at least within their own camp, by emphasizing that he was confirmed “illegitimately” or whatever. Investigating him next year would run a risk of dissolving that cloud if Democrats paraded a bunch of witnesses before the House Judiciary Committee and still couldn’t substantiate any of the allegations against him. Granted, that risk would be low with Nadler stage-managing the proceedings to try to keep exculpatory evidence out. But there’s a serious chance that a new probe would backfire by inadvertently showcasing the fact that even a “real” investigation led by his enemies couldn’t lay a glove on him.

2. When push comes to shove, they won’t have the votes in the Senate to remove him even if they have the votes in the House to impeach him. Maybe Nadler and Pelosi won’t mind that, believing that impeaching him is a symbolic way to rebuke him regardless of whether it results in any official consequences. But there’ll be more than a few Democrats from purple districts, newly elected after ousting Republican incumbents in November, who won’t want to take a fraught vote like impeachment knowing in advance that it’ll be purely symbolic, headed for the trash heap in the Senate. Why risk a right-wing backlash for nothing? Just to make liberals feel good?

3. Some Democrats (not many, certainly not most, but some) will worry about the Court’s institutional reputation, just as Flake did in putting the brakes on the confirmation vote for an extra week of FBI interviews. With Kavanaugh already seated as a justice and having begun to hear oral arguments by next year, and with no chance of actually removing him from the bench in the Senate, some will be squeamish about holding a show trial in the House that’s likely to bring him and the Court further into disrepute despite no hard evidence of wrongdoing. Nadler will probably ignore them but there’ll be a few members of his party who lobby him to let the Kavanaugh matter drop for the good of the Court and for the good of the country. Neither side will benefit in the long run from another round of Kavanaughgeddon.

4. Prominent Democrats dislike the Avenatti circus almost as much as Republicans do and there *will* be another Avenatti circus if Nadler holds these hearings. Avenatti will demand that Julie Swetnick be front and center; unless he and she really do have the goods on Kavanaugh and inexplicably refused to produce them before he was confirmed, nothing good for Democrats can come from showcasing her allegations next year. The party’s 2020 contenders will be furious that their own House colleagues are helping to promote a Trumpy upstart just a year out from the primaries. And if the Committee concludes that Swetnick isn’t credible, which is likely, Nadler will be faced with a wrenching dilemma. Either they’ll have to pretend that they find Swetnick believable, which risks discrediting the entire investigation by association, or they’ll have to make clear that they don’t, which would violate the cardinal rule of #BelieveAllVictims (except victims who accuse Democratic politicians, of course) and earn Avenatti’s wrath. Do Dems really want this crap aimed at them next year on a big stage?

Nadler will end up either an Avenatti ally or an enemy by the end of it. Bad either way for Dems and their presidential hopefuls. Which would make the House’s Kavanaugh hearing the second time that Avenatti has been more useful to the right than the left in SCOTUS matters.

Exit question: Is it true that Trump goofing on Ford at his rally last week was more of a help to Kavanaugh than a hindrance? I’m seeing the conventional wisdom start to congeal around this idea and it smells like BS.

Establishment Republicans initially reacted with horror. But Trump’s 36-second off-script jeremiad proved a key turning point toward victory for the polarizing nominee, White House officials and Kavanaugh allies said, turbocharging momentum behind Kavanaugh just as his fate appeared most in doubt…

The three-week maelstrom — from when Ford first shared her story with The Washington Post to Saturday’s expected confirmation vote — fused the nation’s cultural reckoning over sexual assault with tribal politics, carrying ramifications not only for next month’s midterm elections but for the long-term identities of both political parties.

That’s stupid but it’s likely to gain traction because it flatters prejudices on both sides. Righties want to believe that Trump going after Ford was the key to victory because it turns one of his biggest political liabilities, his willingness to shoot from the hip even when the downside far exceeds the upside, into some political virtue. Lefties want to believe that Trump going after Ford was the key to victory because it conveniently reduces the Kavanaugh saga to Trump’s one truly bad moment in commenting on it. To the right, it’s proof that he fights! and that fighting! works. To the left, it’s proof that the only thing the right cared about was watching the world’s most powerful man mocking a woman who claimed she was sexually assaulted as a kid.

But it’s nonsense. Trump’s comments about Ford didn’t come until four days ago, looooong after “tribal politics” had begun to shape partisan perceptions of Ford’s and Kavanaugh’s credibility. The substance of Trump’s criticism, that Ford’s memory had major gaps, was being advanced by righties since the day the first WaPo story about Ford’s allegations appeared in mid-September. To the extent that Trump’s behavior during this process was useful, it’s how restrained and even sporadically gracious he was towards Ford until Tuesday night, denying Democrats their easiest target. When he did finally take a shot at her at the rally, all three of the Senate’s Republican swing votes — Flake, Collins, and Murkowski — ripped him for it. Notably, Murkowski went so far as to say that she would take those comments into account in how she voted. We all know what decision she arrived at. If anything, then, Trump’s rally comments made the final result less tribal by helping to nudge Murkowski into the “no” column.

If you’re desperate for a “turning point” in this process that led to confirmation, that’s easy. It was Kavanaugh’s own angry opening statement at the hearing last week that cinched grassroots righties’ support for him. Ford’s testimony that morning was so compelling that even Trump conceded it afterward; Republicans were in a daze after she finished, before Kavanaugh spoke, thinking there’d be no way to counter the emotion she showed. But there was — with a forceful show of emotion by Kavanaugh himself, which solidified GOP support for him by convincing people that he must be the victim of an outrageous Democratic smear to be so understandably enraged. That, more than anything Trump said, cemented the pressure on Flake and Collins not to buckle. Kavanaugh saved himself.