The Kavanaugh Court Complexities -- Sunday Political Brunch September 23, 2018


CHARLESTON, W. Va. – I have no idea what happened with Brett Kavanaugh and Christine Blasey Ford 36 years ago, but I can certainly look at my “crystal ball” to assess the implications today. As I often say, as a political analyst I try to assess what may happen based on history, public mood, facts (or lack of facts), and then come to my conclusion. Yes, it’s a guess, but I hope after over forty years of covering politics it’s an educated guess. Let’s “brunch” on that this week.

“Who’s in the Bullpen?” – Look, in baseball season when the team’s starting pitcher is faltering, the manager looks to the bullpen for relief. Make no mistake, the White House and GOP Senators are already vetting other candidates if Kavanaugh fails. Why? In politics – as in most endeavors – you need a backup plan. Let’s just say Kavanaugh can’t get 51 votes and Republicans then lose the Senate in the November elections. They still hold power until January 3, enough time to confirm another conservative. Yes, they lose the Senate majority for maybe two or four years, but they could control the Supreme Court for the next 25 years. That’s huge!

“The Modern Math” – Right now Republicans hold a 51 to 49 seat majority in the U.S. Senate. If one member of the caucus bolts, say Sens. Susan Collins (R-ME) or Lisa Murkowski (R-AK), the GOP could still confirm Kavanaugh with Vice President Mike Pence casting a tie-breaking vote. But if Republicans lose two votes and no Democrats vote yes, Kavanaugh is gone. As for the House (which does not have a Supreme Court vote), the backlash against how Republicans handle this, could affect voters in marginal districts. Right now, the GOP holds 236 House seats, to 193 for Democrats, with six vacancies. If Republicans have a net loss of 19 votes, they cede power to Democrats in the House.

“Clarence Thomas v. Anita Hill, 1991” – I’ve heard all week, from people on both sides, that this is the same the as the confirmation showdown in 1991 between Supreme Court nominee Clarence Thomas and law professor Anita Hill. That was a controversial, inflamed national debate, but it’s not the same as today. Yes, both bear that “he said; she said” storyline with no corroboration, but the media and societal climates have changed a lot. There was no Facebook or Twitter in 1991, stirring public opinion. And there was nothing akin to the #MeToo solidarity movement of today. The cases may have similarities, but the stage is way different.

“What Else Has Changed?” – The public discussion of sexual impropriety in the workplace - or in any societal setting – just began to emerge in the Thomas-Hill era. Conversely, we are just coming off a year in which such notable Americans as Bill Cosby, Harvey Weinstein, Matt Lauer, Charlie Rose, Les Moonves, Roger Ailes, and countless others have had their careers felled by accusations and admissions of sexual misconduct. What started as a few raindrops in the Thomas case, is now a full-fledged Category-5 Hurricane today. I’m not saying Kavanaugh is guilty – how on Earth would I know? But, the jury pool is much different in 2018 than in 1991.

“It’s a Different Congress, Too!” – In 1991, just two women served in the U.S. Senate. Both were white, with one a Democrat, and the other a Republican. Today 23 women serve in the Senate and four are women of color. By party, 17 are Democrats and six are Republican. I’m not saying women will always side with women, because that’s clearly not the case. What I am saying, is the make-up of the body (and the way we treat each other) has shifted dramatically.

“No More ‘House Keeping!’” – The U.S. House – while not having a role in the confirmation process – is certainly reflective of the changing political landscape and public mood. In 1991 just 31 women served in the U.S. House of Representatives. Today there are 84. In both chambers there has been steady growth in female membership since the 1992 election, just one year after the Thomas-Hill dispute. Now that’s not the sole reason, but it’s certainly been a factor. Women’s economic and educational gains are probably the biggest reason for their rise in political clout, but the concerns over sexual mistreatment cannot be discounted.

“The Tone” – Almost to a person, most Republican Senators and President Trump have said that Dr. Christine Blasey Ford should be heard from, that she should be allowed to testify before the Senate Judiciary Committee; and in fairness, Judge Kavanaugh should be able to tell his side of the story. Originally the idea was to have them appear Monday - but Ford balked – though she may be willing to come later in the week. She also asked the FBI to investigate her claim, which it declined since that’s not what the FBI does. Her team may be inadvertently putting her in a tough spot. In a courtroom, for example – and I know confirmation is not a legal case – but the combatants don’t get to choose the dates, who investigates, and what questions get asked. If her requests make the problem too burdensome to Senators, they may just go ahead and vote without her. That could backfire against them. So, we may see some accommodation on both sides.

“Two Alternative Hypotheses” – Women vote in greater numbers than men. In 2016, 52 percent of American who cast ballots were women, compared to 48 percent men. Furthermore, 54 percent of those women voted for Hillary Clinton, to 41 percent for Donald Trump – the biggest gender gap recorded since 1972. That would seem to say women have the upper hand in politics, and perhaps in the Kavanaugh debate. But remember, in 2016, the bottom line was that Donald Trump won the Electoral College and therefore the presidency. I’m not by any stretch saying that Kavanaugh’s fate will be decided by gender politics. Quite conversely – many senators, and the public – may say these accusations are from too long ago, with faded memories, and no corroboration. In a vacuum of evidence, Kavanaugh may just get confirmed, and we’ll see how the political fallout shakes out on November 6th.

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Mark Curtis, Ed.D., is Chief Political Reporter for the five Nexstar media TV stations serving West Virginia and surrounding states.

© 2018, Mark Curtis Media, LLC --- Photo courtesy: Getty Images

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