For the last 20 months, as the Trump administration has been beset by scandal after scandal, conservatives have held on to a simple mantra: judges. In June of this year, shortly after Justice Anthony Kennedy announced his retirement, conservative radio host Hugh Hewitt said:
The president and the GOP-controlled Senate have already put one-eighth of the federal appeals bench in their seats. Each of those new appointees— all principled “originalists” in the mold of the late Justice Scalia—will have more than 400 participations in 2018 alone. Critics from the #NeverTrump crowd need to balance their criticism with this remarkable record of repair of the bench.
The confirmation of judges has, in many ways, been the inverse of the rule within the administration: disciplined and effective, with unimpeachable conservative credentials. Trump seems to understand this. While he shouts out his judicial record at rallies, he largely stays out of the way. He knows that, as long as conservative judges keep getting approved, both his base and the Republican establishment will be in his corner. Confirm enough judges and all sins are forgiven.
Senate Majority Leader Mitch McConnell warned Trump against nominating Kavanaugh to replace Kennedy, reportedly citing his sizable and controversial paper trail from the Bush administration. But Trump apparently took a liking to Kavanaugh and nominated him anyway. What has followed has been a nightmare, with that paper trail playing only a small part. Kavanaugh may have lied under oath. Over the last few days, he has been accused of sexual assault as a teenager. Senate Republicans—and prominent conservatives—appear to be standing by him for now, but his nomination is in jeopardy. A scheduled committee vote on Thursday may be pushed back to allow his accuser to testify before Congress.
The fact that Trump himself has stayed silent on this issue so far is a testament to how important judicial nominees have been to his presidency. But Trump’s recklessness in nominating Kavanaugh has imperiled what would unquestionably be his most important achievement as president—ensuring a conservative majority on the Supreme Court for a generation—which can only imperil his support among conservatives.
Republicans face a tricky political question. Is there enough time to push through a (likely more conservative) nominee before the midterms? If not, is it better to abandon a damaged nominee, in the hopes of making the composition of the Supreme Court an election issue? Or would scuttling the nomination only demoralize their voters, who are growing weary of a scandal-prone president fond of shooting himself in the foot? There is, of course, a moral question about Kavanaugh’s nomination as well. But Republicans have shown a willingness to set those aside again and again over the past three years.