Monday, October 08, 2018

The unlikely but possible down side for the right by shoving Kavanaugh through

As the right crows about their victory in getting Kavanaugh onto the Court, there seems to be little recognition that their tactic produced a real (albeit remote) potential downside. The Kavanaugh hearings revealed that the judge likely committed perjury during his 2006 confirmation hearing for his appointment to the DC Circuit Court of Appeals, and he pretty clearly perjured several more times during last month's confirmation proceedings. The way he was rocketed through confirmation while refusing to provide the Senators with most of the documents from his time working at the Bush White House and having a bullshit FBI investigation that found "no collaboration" to the stories of his sexual misconduct when the FBI was contacted by more than 40 witnesses who were never interviewed, has left a lot of Democrats feeling the entire process was a sham.

Even though Kavanaugh is now on the Court, putting him there has damaged the credibility of the Court and has left an "impeach Kavanaugh" movement in its wake. Since the failed removal after impeachment of Samuel Chase, the general consensus is that impeachment of a Supreme Court Justice should only happen in extreme circumstances (not just because the Justice's decisions are unpopular). Perjury is a real crime. Other federal judges have been removed for perjury in recent times.

But removing a judge or justice by impeachment is really hard to do. You need a majority vote in the House of Representatives to impeach, but then a 2/3 vote in the Senate for a conviction. Current projections of next month's election have the Democrats taking the House but remaining the minority in the Senate. A Democratic Senate takeover, however, is possible (currently 538 gives it a 21.6% chance of happening). But if it does happen, the Democrats will have only a bare majority, with 51 out of 100 votes, 53 at most. One of those votes will be Senator Manchin, who just voted to confirm Kavanaugh. I think it is all but impossible to expect Kavanaugh to be impeached and removed in the next two years. That would take not just the Democrats to take the Senate, but also to get Manchin and approximately 16 other Republicans to switch their position on Kavanaugh and remove him from office for something that was already publicized before they voted to confirm him last week.

After 2020, however, the outlook will probably change. I am assuming that Trump remains unpopular (I think that's a fair assumption, and I am fairly sure his popularity will sink much lower if the economy goes South). While the GOP may hang on to the Senate in 2018 because the electoral map favors their party, the Senate map in 2020 favors the Democrats (Republicans will be defending 21 seats in 2020, when Democrats will only be defending 11). Even if the Democrats don't get the Senate this year, if Trump causes a second blue wave in 2020, there's a fair chance that the Democrats could end up with close to 60 seats. Maybe even more. Another wave would also get them the White House and would leave the GOP a rump of a minority party, with plenty of incentives for a few remaining Republican Senators to buck their party line on occasion even on matters of the Supreme Court (just as Manchin just did to save his ass in WV).

At that point, a Kavanaugh removal by impeachment could be a real possibility. If he turns out to be an unpopular justice, if he is associated with Trump and Trump himself is discredited, if the Democrats have regained both political branches of government (that is a lot of ifs, but they all are real possibilities) and if the "impeach Kavanaugh" movement does not lose steam. That last one is where I see the problem.  When the raw feelings of last week fade away, it will be hard to keep up the energy to impeach him years from now when there will be so many other post-Trump messes to clean up. But if the energy can be sustained the makeup of Congress, Kav might be impeached. And if he is, the Democratic president would be able to appoint a successor.

Make no mistake, the scenario I just described is not likely to happen. It is, in fact, very unlikely. But it could happen. It is not outside the realm of possibility. If they had just dropped Kav last week and appointed someone else, another candidate who, no doubt, would vote just as Kavanaugh will on the Court, but who isn't a perjurer, then they would be in no danger of losing the seat whenever the Democrats retake control again.