Thus, undecided senators face a truly daunting choice. On the one hand, their sympathy for Ford’s allegations, even in the absence of supporting evidence, might lead them to prefer that President Trump nominate someone else instead of Judge Kavanaugh. “After all,” they might reason, “if there is even just a one-tenth of one percent chance that a nominee committed a crime like that, then why not nominate someone else?”
But on the other hand, the senators also know that allowing a belated, evidence-free accusation to stop a Supreme Court nomination will immediately create incentives that undermine the Senate’s confirmation process in future nominations. Every future nominee’s critics will know which glass to break and which lever to pull, in the case of emergency.
And that, in the end, is the senators’ true burden: to choose wisely in the decision to confirm or deny Kavanaugh’s nomination, but also to make that choice in the way that best enables the Senate to carry out the Constitution’s “advice and consent” power for future nominations.
