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If Kavanaugh Goes Down, It’s Probably Impossible To Confirm A New Nominee This Year

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by Kevin Daley

  • Should Judge Brett Kavanaugh’s nomination to the Supreme Court fail because of Dr. Christine Blasey Ford’s allegations, a new nominee likely cannot be confirmed before the end of the year. 
  • Recent high court nominations were processed over a 67-day span, and there is little time left to move on a confirmation in the current Congress.
  • Should Democrats take control of the upper chamber, there could be a vacancy on the high court for years.

As Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court appeared in genuine peril Monday, Republicans are left to grapple with a second problem — confirming a new justice in the event of Kavanaugh’s demise.

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Should Kavanaugh’s nomination falter, the Trump administration has little hope of installing a new justice on the high court before the end of the year, and less still should Democrats seize control of the Senate in the midterm elections.

As Daily Caller News Foundation fact checker Emily Larsen has shown, the Senate took an average of 67 days to confirm the last nine Supreme Court justices. Based on that schedule, time does not allow the Senate to confirm a replacement nominee ahead of the November midterm elections, particularly in view of the fact that President Donald Trump will likely take several days — if not considerably longer — to select a new candidate.

What’s more, embattled incumbents are unlikely to see much of Washington come October, as competitive races anchor lawmakers in their home states.

The midterm calculus is exacerbated by a second consideration: there may be little appetite to move on a Supreme Court nomination during the December “lame duck” session of Congress. Democrats will urge senators to hold action on the nomination over until January when their newly-elected colleagues are seated, an argument that will draw some measure of sympathy from moderate or institutionalist Republicans.

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As such, Kavanaugh’s hypothetical successor should reasonably expect to wait until January for a hearing on their nomination. A vote would follow in late January or early February, at which point the Supreme Court’s term would be half-completed.

This scenario assumes the GOP keeps control of the Senate in the November elections. Should Democrats prevail and assume the majority in January, Republicans would be forced into the perilous position of forcing a Supreme Court nominee through before year’s end, under threat of public outcry and further electoral punishment.

Democrats, still seething over the GOP’s year-long blockage of Judge Merrick Garland’s nomination to the high court, are unlikely to take up any of Trump’s Supreme Court nominees, leaving Justice Anthony Kennedy’s seat open until at least 2020.

The last Supreme Court nominee confirmed by an opposition Congress was Justice Clarence Thomas.

FiveThirtyEight currently gives Republicans a 67 percent chance of holding the Senate, with a 50-53 seat majority in the most likely range of outcomes.

Should Kavanaugh withdraw, President Donald Trump will be under enormous pressure to select a female nominee, preemptively heading off another toxic #MeToo allegation. Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals was the final woman in serious contention for the current nomination.

Other conservative female jurists who would be considered include Judge Joan Larsen of the 6th U.S. Circuit Court of Appeals and Judge Allison Eid of the 10th U.S. Circuit Court of Appeals.

Barrett was a professor at Notre Dame Law School prior to her appointment to the 7th Circuit in 2017. Larsen and Eid were law school professors and state Supreme Court justices before their elevation the federal bench. Barrett and Larsen clerked on the high court for the late Justice Antonin Scalia, while Eid clerked for Thomas.

President Trump appointed all three women to the circuit courts.

The Senate Judiciary Committee announced Monday that it will hold a hearing concerning Ford’s allegations against Kavanaugh on Sept. 24.

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