WASHINGTON — With the 2018 midterm elections coming this November, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals is facing a fractured and polarized U.S. Senate in the weeks leading up to the U.S. Supreme Court nominee’s confirmation hearings on Capitol Hill.
The partisan discord has already reached the point where leading Democratic senators, who have framed Kavanaugh as an extreme arch-conservative, have refused to schedule meetings with him until they receive access to all his communications from his five years as a lawyer in President George W. Bush’s White House.
“Things have been moving in this direction for years. I think we’re now in a position where every Democratic senator is going to vote against every Republican nominee unless that Democratic senator believes it’s necessary for his or her political interests to do otherwise,” Jeff Pojanowski, a law professor at the University of Notre Dame, told the Register.
Kavanaugh’s views on abortion and the possibility that he could one day vote to overturn Roe v. Wade — the 1973 Supreme Court landmark case that declared abortion to be a constitutional right — have also generated speculation that two female moderate Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, could vote against his confirmation.
The Republican leadership cannot afford to lose either Collins or Murkowski because the party has a razor-thin 51-49 majority in the Senate, and U.S. Sen. John McCain will be absent because he is home in Arizona fighting cancer.
But Collins and Murkowski both voted to confirm Neil Gorsuch, President Donald Trump’s last Supreme Court nominee. If the Republican caucus stays united, and several analysts interviewed by the Register expect that to happen, then Kavanaugh will have just enough votes to be confirmed.
Even if Senate Republicans can assure Kavanaugh’s confirmation, moderate Democratic senators in conservative states that were carried by Trump in the 2016 election — such as Indiana, Florida and Montana — will be under intense and conflicting pressures from local voters, party activists, donors and the Democratic Senate leadership.
“Some Democrats will be facing cross-cutting pressures. There are a number of Democratic senators in red states who are up for re-election. They’re facing an uphill battle to keep their seats, and they will need some Trump voters to cross over and vote for them, and a lot of Trump voters voted for Trump because of judicial nominees,” said Richard Garnett, a political science professor and director of the Notre Dame Program on Church, State & Society.
‘Tough Political Calculation’
In normal circumstances, the Democratic leadership in the Senate would probably be willing to give moderate Democrats facing tough re-election bids a pass from voting the party line, especially if the Republicans can already secure Kavanaugh’s confirmation. But the prospect of Trump adding a second justice to the Supreme Court, and the fact that Kavanaugh’s confirmation would create a five-seat conservative majority, is unacceptable for many Democrats.
Garnett told the Register that some Senate Democrats are facing “a very tough political calculation.”
“On one hand, if you want to be in the majority in the Senate, if you’re the Democrats, then you don’t want to lose in West Virginia, Missouri or Indiana,” Garnett said. “On the other hand, this is not just any other vote for them.”
“The most energizing thing among Democratic voters is their opposition to Trump, so they’re definitely put in a tough spot,” said Michael Bailey, a government professor and the interim dean of the Georgetown University McCourt School of Public Policy.
Bailey told the Register that he believes that it may actually be easier at the end of the day for moderate Democrats to vote in their individual best interests if the Republican senators all vote to confirm Kavanaugh.
“If Collins and Murkowski vote Yes, then it’s not going to change the outcome,” Bailey said.
However, Majority Leader Mitch McConnell, a Republican from Kentucky, would still like to poach a few votes from the Democratic side of the aisle if he can, said Matt Green, a political science professor from The Catholic University of America.
“From the perspective of the Republican leadership in the Senate, more votes is always better than fewer, just to give yourself a bit of a safe margin,” Green told the Register, adding that there would also be a political advantage for Republicans if a few Democrats cross the aisle.
“It can be perceived as a stronger confirmation vote if it can be portrayed as bipartisan,” Green said. “Even if it’s just one Democrat, the Republican leaders can still say, ‘Members of both parties supported this nominee.’”
Said Green, “There’s no harm in the Republicans seeking support from Democratic senators. I don’t know how many they’ll get, but I doubt that McConnell is writing them off.”
Vulnerable Catholic Democrat
One vulnerable red state Democrat who is undecided and could join Republicans to support Kavanaugh is Sen. Joe Donnelly of Indiana. Following Trump’s announcement that he was nominating Kavanaugh to the high court, Donnelly said he would “carefully review and consider the record and qualifications of Judge Brett Kavanaugh.”
Donnelly is facing a tough re-election challenge from Republican Senate candidate Mike Braun. Recent polling in Indiana has shown Braun to have a one-to-three percentage-point lead over Donnelly, which is within the margin of polling error but still concerning for Donnelly.
“This is a really important vote for Donnelly. It’s tough, given that the balance of power on the court is now up for grabs. It’s just very difficult to figure out what is the right way to vote for Democrats,” said Geoffrey Layman, a political science professor at the University of Notre Dame.
For Donnelly, who Layman said has carved out a reputation as a pro-life Catholic Democrat, the political calculus is particularly difficult.
Said Layman, “Because are you not going to vote with President Trump and finally have a pro-life majority on the court? Has your pro-life rhetoric for all these years really been true? Are you really an independent voice who supports Indiana values and is truly pro-life? If so, some would say you then ought to support Kavanaugh.”
Several political analysts interviewed by the Register said that by nominating a mainstream conservative justice like Kavanaugh, a respected constitutionalist, the Trump administration put conservative Democrats like Donnelly in a real bind.
“The Democratic leadership will keep trying to frame Kavanaugh as a radical conservative,” Layman said. “But if they’re unsuccessful, the Republicans will frame it as, ‘For these Democrats from red states, why wouldn’t they vote for Kavanaugh, unless their pro-life stance is all lip service and they’re really beholden to the Chuck Schumer/Nancy Pelosi leftist wing of their party?’”
Kavanaugh’s confirmation battle is a galvanizing moment for both parties and their bases. While Democrats see the fight in terms of preventing a conservative majority and preserving abortion rights, Republican leaders also see it as an opportunity to mobilize their voters and prevent a “blue wave” from eliminating their party’s control of Congress.
CUA’s Green is skeptical that the Kavanaugh hearings will have much of an impact on the 2018 midterms.
“I can’t think of any nomination to the high court that actually influenced many people’s vote choices in the midterms,” Green said. “There are so many things going on, ranging from the economy to Trump’s popularity. I think Mitch McConnell is smart to threaten to hold this vote in October because of the conservative Democratic senators, but I’m not convinced this is going to save the Republican Party in November. They need a lot more than this to help them.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.