Sep 30, 2018

A 4-4 court?

Photo: Bill Clark/CQ Roll Call via Getty Images

This scenario seemed unthinkable a month ago, but it's now being privately discussed by sources involved in Brett Kavanaugh's confirmation: If Kavanaugh falls after the FBI investigation this week and Democrats flip the Senate in November, will Trump nominate a compromise Supreme Court justice who's acceptable to Senate Democrats?

The answer: No way, according to sources with direct knowledge of the president’s thinking, both inside and outside the White House.

"If Kavanaugh doesn't make it, it all depends on the midterms," said one of those sources.

  • "If they hold the Senate, OK, regroup, put somebody up next year or maybe end of this year.
  • "But if he [Kavanaugh] doesn’t make it and the Senate flips, I think it's 4-4 for next two years.

"Politically, I think they would rather keep it 4-4 rather than put somebody acceptable on the court," the source added. "He [Trump] needs to run on polarization and the court in 2020."

  • One of Trump's most trusted advisers told me he'd counsel Trump that if Democrats win the Senate, under no circumstances should he nominate a compromise candidate.
  • A senior administration official close to the process told me: "A 4-4 tie is a conservative win. Not as much as a 5-4 majority, but it takes constitutional interpretation out of D.C."
  • And a White House official told me Trump has made clear he'd nominate somebody in Kavanaugh's judicial mold no matter what happens in the midterms. "He sees it as a fundamental promise," the official told me. "They [Democrats] are not going to be rewarded for this. He's not going to undercut allies and reward enemies."
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