There seems to be a high degree of confidence among liberals that if Brett Kavanaugh goes down, President Trump will simply appoint another conservative, who Senate Majority Leader Mitch McConnell would simply push through before the new Congress is sworn in — even if Republicans end up losing control of the Senate.
This assumption has always, to me, been highly overstated, so it didn’t surprise me to see this report from Jonathan Swan of Axios saying that Trump has no plan B to swap in another nominee if Kavanaugh goes down. “There’s no time before the [midterm] election to put up a new person,” a White House official told Swan.
If Kavanaugh is not confirmed, then the attention will turn to the campaign season. If Republicans retake the Senate, then Trump will obviously be able to appoint another judge to the Supreme Court. If Democrats win the Senate, however, they would presumably seek revenge for Merrick Garland and hold the seat open through the rest of Trump’s first term. Therefore, Republicans would have to confirm a nominee during the “lame duck” session between the Nov. 6th election and when the new Senate is sworn into office in early January.
This, to me, would be a lot more difficult than it sounds. For Democrats to win control of the Senate, it would mean that Republicans would have been eviscerated. Under such conditions, even if McConnell wanted to, I’m not sure that he could convince fence-sitting senators such as Susan Collins to go along with the effort. Collins, to be clear, would be up for re-election in 2020 in a presidential election year. Already under significant pressure to vote “no,” she may buckle after witnessing a total slaughter. Furthermore, vulnerable red state Democrats, whose votes are now in play, would be off the hook after Nov. 6th, having likely survived. So it could be a tough sell.
McConnell is often treated as a legislative wizard, but much of that reputation has been earned from his ability to maintain party discipline when it came to blocking President Obama’s agenda when Republicans were in opposition. He has a much more mixed record when it comes to whipping votes to pass something, as evidenced, among other things, by the stunning failure to repeal and replace Obamacare.
Is it possible that Kavanaugh goes down, Trump appoints somebody new, and McConnell is able to race to confirm him or her by Jan. 1st, regardless of what happens in November? Sure, it’s possible. But it’s far from as automatic as many liberals are suggesting.
