Republicans are going to press forward and confirm Brett M. Kavanaugh to the Supreme Court by early next week. Sen. Jeff Flake (R-Ariz.) was probably the biggest hurdle, and he’s now a “yes.” He explained in a statement that he’s voting for Kavanaugh even though Thursday’s hearing left him “with as much doubt as certainty.” Flake had previously said the Senate’s decision on Kavanaugh would “forever be steeped in doubt.”
But here’s the thing: What if it’s not? For all the talk about whether Republicans could confirm Kavanaugh or even what effect his confirmation might have on the midterm elections, neither discussion addresses a nightmare scenario even farther down the road. And that nightmare scenario is this: That more evidence emerges against someone who will then be called Justice Kavanaugh.
Flake is right that we’ll probably never know the truth about what happened 36 years ago in the bedroom described by Christine Blasey Ford. Nor will are we likely to get definitive proof about Deborah Ramirez’s or Julie Swetnick’s allegations. Each allegation is either largely or completely uncorroborated right now, despite plenty of people searching very hard for corroboration over the past two weeks.
That doesn’t preclude more evidence from emerging, though, and if that evidence is produced, Republicans may have much bigger problems than confirming Kavanaugh. It may cost them a seat on the Supreme Court or at least entail a hugely damaging narrative that they bungled Kavanaugh’s confirmation. Partisan politics aside, it could also throw into question the court’s very legitimacy.
As some have noted, Supreme Court justices can be impeached by the House of Representatives. Some Democrats have even talked about doing that if they take the House in November. Actually removing Kavanaugh from office would require 67 votes in the Senate, though, which isn’t likely, based upon current evidence. And those votes wouldn’t be forthcoming unless the evidence was truly damning.
But there’s also the looming prospect of criminal investigations. What if law enforcement starts investigating an allegation that it views as credible? What if a solid, corroborating witness emerges for one of the existing allegations? What if a witness we know about recants? Such a development might not even be about whether Kavanaugh committed a sexual assault; it could merely be about whether he perjured himself with his denials.
Justice Department guidance suggests that a sitting president should be exempt from indictment. And federal judges are exempt from civil and criminal liability stemming from actions taken on the bench. But they are not exempt from indictment for things separate from their judicial duties.
In the 1991 case Mireles v. Waco, the Supreme Court appended a footnote to the ruling that said, “The Court . . . has recognized that a judge is not absolutely immune from criminal liability.” Several federal judges below the Supreme Court level have been indicted, including U.S. District Judge Harry E. Claiborne in 1983, U.S. Appeals Court Judge Otto Kerner in 1972 and U.S. Appeals Court Judge Martin T. Manton in 1939. Rep. Alcee L. Hastings (D-Fla.) was indicted back in 1981, when he was a federal district judge.
If credible evidence were to emerge that Kavanaugh committed sexual assault or perjured himself, and if he were indicted or impeached and forced from the bench, the GOP might not be in a position to appoint and confirm his replacement. Shelving Kavanaugh now would at least give the GOP time to pick and confirm (by themselves) a new nominee before a possible retaking of the Senate by Democrats; if the evidence emerges months or years down the road, they might not have that luxury. It could cost them a 5-4 Supreme Court majority.
And even if an embattled Kavanaugh were able to hold his seat, it could create a crisis within the usually apolitical and independent judicial branch. Democrats would almost certainly challenge the legitimacy of opinions on which Kavanaugh is the swing vote. It would make what we’ve seen these past two weeks look like child’s play.
All of this may be unlikely. But by rejecting an FBI investigation and pushing Kavanaugh’s nomination through, even as new accusers come forward and only two people have testified, Republicans are placing a very heavy bet that it won’t. The lack of a more robust process may be more likely to ensure that Kavanaugh joins the court, but it hurts the GOP when it comes to guarding against catastrophe in the months and years to come.
Flake gave his tacit approval to that approach Friday. Time will tell how it reflects upon the GOP, whether it might even cost it a Supreme Court seat, and what it portends for the Supreme Court as an institution.