By Earl Ofari Hutchinson
The common refrain whispered and publicly uttered about Brett Kavanaugh withdrawing from Supreme Court consideration goes like this. If he withdraws, all President Donald Trump will do is pick another right-wing hard case for the bench. Or, more likely, with sex now dominating the thinking and conversation about Supreme Court picks, the next pick would be a woman.
That may be true. The Federalist Society and the Heritage Foundation have done their jobs well and handpicked some of the most far right legal ideologues one could imagine packing the federal judiciary and the Supreme Court.
Trump has dutifully cherry picked the names from the list both groups shoved in front of him. He punctuated that when he emphatically said ”This list is definitive and I will choose only from it in picking future justices of the United States Supreme Court.”
Yet, there’s a problem with this neat scenario; in fact, there are several problems for Trump and the Republican Party with this. Time is one of them.
The long game of Senate Majority Leader Mitch McConnell is to bum rush a hard-right mouthpiece to the high court to lock down the ultra-right’s long dreamed of fifth conservative vote on the court for decades to come. Polls, public opinion, a full vetting process for a Supreme Court justice and consulting with Democrats on the confirmation procedures, was waved aside in his dash.
However, there’s a short game that makes time a factor in this. That’s the looming mid-term elections. The Republican Party shakes with terror at the prospect that the Democrats could take back the House, and even more unthinkable that they could win back a majority in the Senate, too.
That could blow to smithereens the carefully constructed plan by the right to put the Supreme Court under its wrap for years. The Democrats could then do exactly what McConnell did for nearly a year with President Barack Obama’s Supreme Court pick, Merrick Garland. That’s sit on it.
He gambled that Republicans could hold a majority in the Senate after the 2016 presidential election, and that a Republican would win the presidency and that the Republican president would promptly nominate a reliable rightist to the high court. The pick would then be swiftly and effortlessly confirmed by the Republican Senate majority.
McConnell’s canny, cynical and carefully crafted crystal ball couldn’t foresee a Christine Blasey Ford, a Deborah Ramirez, or who knows how many other women would pop up and upset the plan and the timetable for locking down the Supreme Court with their man.
If Kavanaugh is out, time now combines with another factor that makes it impossible for the GOP to pull this little stunt again and subvert the confirmation process. The media and, more importantly, the public are now paying attention to the drama about picking a Supreme Court judge and the importance of the position.
And a lot of people don’t like what they see. Polls have shown that most respondents don’t want Kavanaugh on the high court. Many persons also demand that a Supreme Court pick be fully vetted and that any and all information about their past be revealed in order to know just who this person really is. That takes time, too, and it also takes full transparency to ensure that that vital information is forthcoming and gets a full public airing.
A Kavanaugh withdrawal would also do something else that has, at times, been appallingly missing. It would fully arouse congressional Democrats. The big knock against them, especially Senate Democrats, is that they have been too gentile, compromising and willing to make nice with the Republicans.
Democrats took heat when they dutifully showed up for the start of Kavanaugh’s confirmation testimony before the Senate Judiciary Committee and then let Kavanaugh weasel out of giving truthful answers to tough questions about his days of being the White House legal hatchet man during the administration of George W. Bush.
This time around, Democrats would likely pull out all legal and legislative stops to bog down the confirmation of a Kavanaugh replacement.
It’s no secret that number one on the Supreme Court wish list for the right is to overturn Roe Vs. Wade, the ruling that legalized abortions. Kavanaugh is viewed by the right as the point man for this.
That stoked the fury of legions of women who recognized the mortal peril he posed. One of those women undoubtedly was Blasey Ford.
That peril will not end if Kavanaugh withdraws. Women’s and civil rights groups, congressional Democrats and much of the public know that.
They will be watching even more what any other Supreme Court pick would likely say and do on this issue. That means even more eyes on the pick and the confirmation process, and thus intense and sustained opposition.
A Kavanaugh withdrawal would not mean Trump and the GOP can just plop another Kavanaugh type on the bench and get that pick quickly confirmed. It will ignite another time-consuming fight.
This time, time won’t be on the GOP’s side.
Earl Ofari Hutchinson is an author and political analyst. He is the author of “Why Black Lives Do Matter (Middle Passage Press). He also is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.