John Fund: Winners and losers in the Kavanaugh confirmation fight

In assessing who comes out ahead or behind after the Kavanaugh firestorm, let’s acknowledge that in some ways we don’t know: the midterm elections a month from now have become more chaotic and uncertain as the Kavanaugh hearing has added fuel to the already raging partisan flames.

The election impact may be a split outcome.  In four states where Democratic Senators are running for re-election, Trump and his Supreme Court pick are popular.  Senators Joe Donnelly of Indiana, Claire McCaskill of Missouri, Heidi Heitkamp of North Dakota and Jon Tester of Montana may go down to defeat because the intensity of their liberal base’s opposition prevented them from moving to the center and voting for Kavanaugh.  Last year, both Donnelly and Heitkamp, for example, voted for Neil Gorsuch, Trump’s first Supreme Court choice.

For his part, Senate Majority Leader Mitch McConnell thinks the excesses of the Kavanaugh opposition are a “great political gift.”  He told The Hill newspaper on Saturday that “The tactics have energized our base. I want to thank the mob, because they’ve done the one thing we were having trouble doing, which was energizing our base.”

But there is a flip side of the political impact. The confirmation of Kavanaugh could inflame suburban women, who will play a key role in deciding whether or not the GOP can defend 25 seats won by Hillary Clinton in 2016.  Take Southern California, where Democrats are currently leading or tied in four Orange County districts Clinton carried but which also elected a Republican in 2016.

A Democratic poll released Wednesday found that women in the four Orange County seats said they would be less likely to vote Republican if Kavanaugh was confirmed.

While there is a lot that’s uncertain about the Kavanaugh fallout, we can draw some conclusions on who winners or losers are:

Winners:

The Rule of Law

Bedrock principles of American justice, such as the presumption of innocence and a rejection of mob rule, were upheld  - albeit narrowly. Senator Lindsey Graham’s fears that smears and character assassination would dominate any future court appointment debate have been put in abeyance for now.  A new version of Congressional McCarthyism didn’t succeed. But as John Nolte of Breitbart.com noted: “Not a single Democrat or member of the establishment media had the moral courage to be the Joseph Welch of their time, to point to their own and ask, “Have you no sense of decency?”

Senate Majority Leader Mitch McConnell

Former House Speaker Newt Gingrich and other conservatives are full of praise for McConnell, R-Ky., with Gingrich tweeting:  “The successful approval of Judge Kavanaugh owes a lot to Mitch McConnell’s skill, determination and leadership. The Senate leader’s effectiveness is changing the trajectory of U.S. history.”

McConnell pulled off an encore performance with the Kavanaugh fight. In 2016 he held his caucus together and kept the seat of the late Justice Antonin Scalia open until after that year’s November election.  This year, he dismissed calls for Kavanaugh’s nomination to be withdrawn and fulfilled his promise to “plow ahead” and confirm Kavanaugh in the absence of any corroborating evidence that the nominee was a sexual assailant.

President Trump

Donald Trump won in 2016 in part because he convinced wobbly Republicans spooked by the infamous “Access Hollywood” tape that he would appoint solid conservatives to the federal courts.  He has proceeded to do precisely that with his two additions to the Supreme Court and dozens of appointees to lower courts.

He also has convinced Republicans that they have a common adversary in the left, and that should override concerns about his erratic governing style. “This is the first time the country club Republican and the Trump Republican has come together,” Senator Lindsey Graham of South Carolina says.

Even virulently “Never Trump” columnist Bret Stephens of the New York Times wrote:  “I’ll admit to feeling grateful that, in Trump, at least one big bully was willing to stand up to others.”

Jeff Flake

The Arizona senator doesn’t have to worry about the immediate political implications of his role in the Kavanaugh battle.  He is retiring this year.

But despite some ridicule and anger, it appears he will emerge with more pluses than minuses. His insistence that the FBI’s background check be reopened for one week paid off.

It allowed additional time for the less credible allegations against Kavanaugh to collapse.  It produced no new incriminating evidence against him. Indeed, it turned up evidence that Christine Ford’s allies had unsuccessfully pressured Leland Keyser, a key witness, to change her story and corroborate Ford’s account of sexual assault.

Flake is known to be considering a primary challenge to President Trump in 2020.  His stance in the Kavanaugh confirmation battle means he will run away with the “media primary” over who gets the most attention in any challenge to Trump. But, on the other hand, Trump’s success in winning the confirmation battle has united the Republican Party behind the president - at least until the November midterm election results are known.

And here are the losers:

Michael Avenatti

The publicity-seeking lawyer who represents Stormy Daniels, the adult film actress who claims she had an affair with Donald Trump, couldn’t resist jumping into the Kavanaugh fight.  He wound up being blamed by many Democrats for helping them lose momentum and making opposition to Kavanaugh appear to be part of a partisan pile on.

Avenatti was the lawyer for Julie Swetnick, who claimed she saw a young Kavanaugh at multiple parties where “gang rapes” occurred. But Swetnick’s credibility came under intense fire and she was caught in inconsistencies on key elements of her story. Senator Susan Collins of Maine called the claims “outlandish” and cited them as one of the reasons she voted to confirm Kavanaugh.

FBI

The law enforcement agency is under attack now from both the right and the left.

It had already faced skepticism from conservatives for the alleged role several FBI officials played in the 2016 investigation of Hillary Clinton’s emails and the later decision to investigate possible ties between the Trump campaign and Russia.  A poll by NPR, PBS NewsHour and Marist College found that nearly a third of those surveyed found the FBI to be biased against Trump.

Democrats now complain the FBI bungled its initial background checks of Kavanaugh and then, when they were asked to reopen them, the bureau bowed to White House pressure to make them narrow and prefunctory.

Senate moderates

It’s unclear what the fallout will be on two key Senators who decided Kavanaugh’s fate.  But it’s certainly true that neither of them welcomed the intense scrutiny and publicity they garnered in recent weeks.

Republican Senator Susan Collins of Maine is now a hero to conservatives, an unusual position for someone who cast a key vote against repeal of ObamaCare last year. She will need that support in 2020 if she chooses to seek re-election.  A liberal group has already raised over $3 million to support whichever Democrat decides to challenge Collins.

Change Research, a Democratic polling firm, found that 50 percent of voters are now less likely to support Collins because of her vote for confirmation.  But memories do fade in politics. After Anita Hill’s testimony against Clarence Thomas, feminist groups proclaimed 1992 was the “Year of the Woman” and vowed to defeat Senators who had supported Thomas. But, with the exception of Democrat Alan Dixon who faced a primary only five months after the Hill controversy, no supporter of Thomas lost.  Indeed, Republicans actually gained a Senate seat and nine House seats in the “Year of the Woman.”

Senator Lisa Murkowski of Alaska was the sole Republican to vote against Kavanaugh, and her vote infuriated conservatives who vowed to defeat her in the 2022 Republican primary. Former GOP vice presidential candidate Sarah Palin tweeted out “Hey @LisaMurkowski - I can see 2022 from my house.”

But Murkowski has faced angry conservatives before.  She actually lost the 2010 GOP primary, but bounced back and won re-election as a write-in that fall. She could repeat that feat again, switch parties and become a Democrat, or run as an independent.

Feminist groups

The protestors who screamed and shrieked from the Senate gallery as Brett Kavanaugh was confirmed didn’t do their cause any favors. Nor did leaders of the Women’s March, who lashed out at Senator Susan Collins as a “rape apologist.”

Several senators accused the activists of trying to “intimidate” them into opposing the nominee through such tactics as driving Senator Ted Cruz and his wife out of a Washington restaurant.

The media

The mainstream media already had credibility problems before the Kavanaugh hearings.  They were made worse by many reporters who credulously reported the accusations of Christine Ford and others without properly scrutinizing them.  Some of the commentary was vile, such as suggestions Kavanaugh should no longer coach girl’s basketball teams regardless of his guilt or innocence. A cartoonist mocked Kavanaugh’s 10-year-old daughter for praying for Ford.

The country

Finally, it can be fairly said the nation wasn’t helped by the deeply partisan and ideological divides that were further exposed by the Kavanaugh hearings.

Relations between men and women are now even more fraught with tension and suspicion after a year of the #MeToo movement.  Many Americans might now think women are less likely to be believed if they come forward with accounts of sexual assault, while others will fear that some men will be accused unfairly of false or exaggerated incidents in cases where the truth is unlikely to be ever firmly established.

And it’s also clear that the U.S. Senate, once touted as the world’s greatest deliberative body, is now seen as something more resembling a mosh pit of partisan grievances.

As for the Supreme Court, the Kavanaugh debate has brought to light just how much it’s viewed by both parties in this country as a political player in key issues that used to be decided by legislative bodies.  The branch of government our Founding Fathers viewed as “the least dangerous branch” has clearly become an unelected power center that has the final say in too many of our great national debates.