Supreme Court nominee Brett Kavanaugh’s confirmation is starting to look like it might be in jeopardy for the first time in what seems like this entire process.
Republicans have a clear Senate majority, and Senate Majority Leader Mitch McConnell has indicated that his plan is to get Kavanaugh on the Supreme Court no matter what happens later this week, when Kavanaugh accuser Christine Blasey Ford testifies before the Senate Judiciary Committee. But the comments of a few Republicans on the fence, like Sen. Lisa Murkowski, have raised some doubts on whether or not McConnell will have the votes to ram through Kavanaugh’s nomination.
Less clear are where the three Senate Democrats who voted for Trump’s last Supreme Court nominee, Neil Gorsuch—Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana—stand on Kavanaugh. All three have voted with Trump more than half of the time (the most among Senate Democrats), and all are locked in tight midterm fights in states that all went for Trump by at least double-digits. Thus far, none of the three have indicated where exactly they’re going to fall when (and if) Kavanaugh comes up for a vote, although all have called for postponing a vote until after Christine Blasey Ford’s testimony on Thursday. (Alabama Sen. Doug Jones, who was elected after Gorsuch was already on the bench, is often discussed as another possible Democratic vote for Kavanaugh, but he has been more vocal than the other three about the situation.)
One theory is that Donnelly, Heitkamp, Manchin, and other Democrats are giving milquetoast responses like this in order to create the perception that they’re open-minded towards Kavanaugh and the allegations against him. This is bullshit. There are very few jobs in America you can get with sexual assault allegations hanging over your head, and Supreme Court Justice surely shouldn’t be one of them.
What’s more likely is that these senators’ reluctance to come out against Kavanaugh is driven by political concerns. Conventional wisdom holds that in an election year, red-state Democrats who want to keep their seats simply can’t take such a public position like this against the president who won their state two years ago. “[Red state Democrats] don’t want any local media story that says, ‘Oh is he becoming closer to Chuck [Schumer]?’” Michigan State political science professor Matt Grossmann told Splinter earlier this year when questioned about Democrats’ votes for Trump’s cabinet nominees.
But when it comes to the Kavanaugh nomination, red state Democrats have more to lose by voting for Trump’s nominee.
To start, Kavanaugh has never been a popular nominee. A Gallup poll taken in August, before the Christine Blasey Ford and Deborah Ramirez allegations came to light, showed that 40 percent of those polled wanted Kavanaugh seated, along with 36 percent opposed. Out of recent nominees, Gallup noted, Kavanaugh joined Harriet Miers and Robert Bork as the only one “for which the average margin in favor of confirming was less than 10 points.” Kavanaugh’s support has plummeted even further since then: a Fox News poll released this week showed that 50 percent of the public opposes his confirmation, while 40 percent support it.
What’s more, a recent Kaiser tracking poll found that issues like corruption, healthcare, immigration, and jobs all ranked as the “most important issue” to more voters than the Supreme Court nominee, and a CSPAN poll from last month showed that over half of the country couldn’t name a single Supreme Court justice.
Even if Kavanaugh wasn’t a historically unpopular nominee facing multiple allegations of sexual assault and harassment—and even if the Supreme Court wasn’t the electoral litmus test senators seem to think it is—there would be no reason for elected officials who identify as Democrats to support his nomination. Kavanaugh has consistently sided with corporations against workers. He repeatedly evaded questions about his views on abortion during his Senate Judiciary Committee testimony, but in the one abortion case he’s handled in his role on the DC Circuit Court of Appeals, he made a ruling that would have delayed a young immigrant woman from obtaining an abortion. (The full court reversed it.) And Kavanaugh’s view of executive authority is that it should be nearly limitless, which at this point would allow our very dumb and authoritarian Republican president to essentially do whatever the hell he wants with no recourse.
It’s true that even if Democrats band together and vote as a bloc against Kavanaugh, it might not be enough to sink his nomination. But at the very least, they could make Kavanaugh’s path to confirmation a little harder, and their reluctance to do even that should be a wake-up call to anyone who believes that they’ll find their courage once they get out of an election year. And above all, “I won’t vote for someone credibly accused of sexual assault” should be the most basic, obvious litmus test for any Democrat—for anyone—whatever state they’re from.