Midterm Time Capsule, 50 Days to Go: The Kavanaugh Watch

From a cartoon by Kal, of the Baltimore Sun, after the Anita Hill hearings in 1991. (Courtesy Kevin KAL Kallaugher, Baltimore Sun)

About the author: James Fallows is a contributing writer at The Atlantic, and author of the newsletter Breaking the News. He was chief White House speechwriter for President Jimmy Carter, and is a co-founder, with his wife, Deborah Fallows, of the Our Towns Civic Foundation.

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

At the moment, in mid-September—with no way of knowing how the midterm elections will go, or what legal entanglements lie ahead for Donald Trump—we do have one possible gauge of how far the politics of 2018 have actually deviated from previous norms.

It involves the prospects for Brett Kavanaugh’s nomination to the Supreme Court.

Through post-World War II political history, there have been distinct moments when a nomination curdles, or sours—and when the assumption shifts from likely approval, which is the starting point for most selections by most presidents, to likely failure.

  • In 1987, Ronald Reagan’s pick to succeed Lewis Powell on the Court, a 41-year-old federal judge named Douglas Ginsburg, withdrew from consideration less than two weeks after he was announced, because of an (unbelievable in retrospect) controversy about marijuana use. The complications of sticking with him were piling up too fast. (Previously Reagan had named Robert Bork for this seat; that nomination went down, after a bitter fight, by a 42-58 vote, with 58 voting against him. After Ginsburg bowed out, Reagan turned to Anthony Kennedy—whose retirement this year opened the seat Kavanaugh would hold.)
  • In 2005, George W. Bush’s pick to succeed Sandra Day O’Connor on the Court, a 60-year-old White House staff official named Harriet Miers, withdrew from consideration three weeks after she was announced, in the face of Democratic criticism about her lack of judicial experience and Republican doubts about her policy views. The fight to defend her seemed not worth the cost. (Samuel Alito was eventually confirmed for this seat. )
  • In 2009, Barack Obama’s pick as the new Secretary of Health and Human Services, former Senate Majority Leader Tom Daschle, withdrew from consideration two weeks after Obama was sworn in, because of (again penny-ante in retrospect) questions about his failure to declare use of a private-car service as taxable income, and related personal-finance issues. Losing him hurt Obama badly, but at the time the fight to keep him seemed likely to hurt more.

Anyone who has been around politics has seen similar episodes, when opposition starts cresting, and one of three outcomes is in view:

(1) A nominee fights bitterly—and hangs on, as Clarence Thomas did for his seat on the Supreme Court in 1991.
(2) A nominee fights bitterly—and loses, as Bork did in 1987.
(3) a nominee sees defeat impending, and decides to get out of the way (or is moved out of the way) to cut losses and minimize the public humiliation.

If these were normal times, we’d say that option (3) is in view for Brett Kavanaugh.

Twenty-four hours ago, it was news that, at last, one Republican senator had the daring to say: Hold on, what’s the rush with this vote, let’s hear the evidence against Kavanaugh and his response. That was Jeff Flake, of Arizona. Then another, Bob Corker of Tennessee, joined him—and by Monday evening, it had become the conventional view.

That is not good news for Kavanaugh, whose best prospect for success was that 51 Republicans would hold together as a bloc to get him through, fast. This would also make it tough for red-state Democrats facing hard reelection races—like Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and Claire McCaskill of Missouri—to cast what they know would be a meaningless vote against him.

Every day that passes between now and a Senate vote is a step backward for Kavanaugh.

  • It’s one more day for audiences to see reruns of the Senate Judiciary Committee’s brutalizing treatment of Anita Hill back in 1991—all men on the committee at that time, all white, all mercilessly hectoring Hill. Arlen Specter was the worst of them, followed by Orrin Hatch (who is still in the Senate, at age 84) and the committee’s then-chairman, Joe Biden, and its current chairman, Chuck Grassley (at 85). If you were too young to see these in real time, or even if you think you remember them, I strongly recommend paying attention when they’re shown on cable. Anita Hill’s composure is unbelievable, and the senators’ smug callousness is … hard to describe.
  • It’s one more day for witnesses, stories, documents, emails, and complications of every sort to arise. What about, once again, the nominee’s big credit-card debts, and their sudden disappearance? What about his speech with constant (joking) allusions to binge and black-out drinking?
  • It’s one more day for the most gimlet-eyed political calculators to think: Do we need the stress? Is this fight going to be worth it? If time is no longer on our side, does it make sense just to watch things go wrong, rather than trying a different approach? With a less controversial, more conservative, ideally younger judge—and maybe a woman!

The most gimlet-eyed of all is, of course, Mitch McConnell, who let it be known back in July that he thought that Kavanaugh carried needless personal and political baggage. “Mr. McConnell made clear in multiple phone calls with Mr. Trump … that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation,” the New York Times said in its story 10 weeks ago. “Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created … as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.”

By cutting its losses with Harriet Miers 13 years ago, the Bush White House ended up with an apparently much more conservative replacement: Samuel Alito. Why—the Republican gimlet tribe will ask—should we keep beating ourselves up with these Kavanaugh hearings, when there are so many other choices we could make?

Those are the calculations that would apply—in usual times.

Under usual circumstances, this evening’s time capsule would say: Things look bad for Brett Kavanaugh.

But in these circumstances? Who knows. We’ll see.

Fifty days to go.


Here’s the full-frame version of the KAL cartoon:

From the Baltimore Sun, 1991, courtesy Kevin KAL Kallaugher. http://www.kaltoons.com/