Judge Brett Kavanaugh has become a political liability for Republicans, according to one line of thinking.
In polls, more people oppose than support his confirmation to the Supreme Court. If he is confirmed, his tenure on the court will be clouded by allegations of serious sexual misconduct that are believed by many millions of Americans.
So Republicans are being advised to replace him with a new nominee; say, appeals-court Judge Amy Coney Barrett.
I had hoped that President Donald Trump would pick Barrett in the first place. But at the moment I think that Republicans would be better advised to move ahead with Kavanaugh’s confirmation.
I start from two related premises. The first is that while we do not and probably cannot know for certain, Kavanaugh is very likely innocent of the charges against him.
The second premise is that Kavanaugh is being treated with vicious unfairness. Several Democratic senators have pronounced themselves convinced of his guilt in the absence of evidence corroborating the accusations. Writers at prominent media outlets are claiming that Kavanaugh is smearing his accusers merely by contesting their charges.
Given my premises, there are five reasons to stick with Kavanaugh.
The first is to avoid an injustice. Claims that Kavanaugh is merely being subjected to a job interview, not a criminal trial, are hard to take seriously. You would have to be blind not to see that a Kavanaugh withdrawal or defeat would be taken as a quasi-official verdict on the allegations against him. Kavanaugh would be disgraced. Even his existing judgeship would be insecure.
The second reason is to discourage future spurious campaigns against nominees. You don’t have to believe that the Blasey Ford allegation is entirely politically motivated to think that ideological and partisan opposition to a conservative judicial nominee has taken it much further than the evidence warrants — or to worry that if it kills a nomination, charges will be invented or inflated to reprise that success.
Third, a lot of conservative voters might see the demise of Kavanaugh’s nomination as a Republican betrayal, or at least a sign of weakness, and sit out the midterms in disgust.
Fourth, Republicans might not get another nominee confirmed if they abandon Kavanaugh. If they lose control of the Senate in the election, are they really going to confirm a new nominee in a lame-duck session? Are the liberals who called Sen. Susan Collins’ office to scream at her aides before Blasey Ford’s name even surfaced going to stand down? I can see why Democrats would be delighted to deny Republicans another Supreme Court confirmation. I can’t see how it’s in Republicans’ interest to help them.
Fifth, the claim that suspicion of Kavanaugh will taint any rulings he makes is overstated. If a court with Kavanaugh on it overruled Roe vs. Wade, tens of millions of people would be outraged. But almost all the same people would be outraged if a court with Amy Coney Barrett on it instead overruled Roe. If Sen. Collins believes that the evidence strongly points in Kavanaugh’s favor — as it does — she should not ignore that conclusion to defer to the sensibilities of people who don’t care about the evidence.
At the time Justice Clarence Thomas was confirmed, when the public had the clearest sense of the evidence related to Anita Hill’s allegations against him, most people sided with him — for very good reasons. (Her story had, for example, changed between the time she talked to the FBI and her Senate testimony, and two FBI agents charged her with dishonesty in trying to explain away the difference.)
Years passed, memories faded and Thomas’ critics continued to maintain he was a sexual harasser. Many millions of Americans believe it, unfortunately. It’s not clear that the court is held all that much lower in public esteem as a result, or its decisions accorded less respect.
I hope Judge Kavanaugh gets confirmed. Either way, the Senate should hold the vote.
Ramesh Ponnuru is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.