Red-State Democrats' Fears Over Kavanaugh Vote May Be Overblown

By Jane Mayer, The New Yorker

15 July 18

udging from their first reactions to President Trump’s pick of Brett Kavanaugh for the Supreme Court, Republicans are betting that the confirmation fight is going to prove an election boon. In West Virginia and Missouri—two of a handful of conservative-leaning states in which Democratic Senate incumbents face difficult reëlection battles—Republican challengers are already using the issue as a political cudgel. On Monday, in Missouri, Senator Claire McCaskill’s likely Republican opponent aired an advertisement attacking her on the issue the instant that Kavanaugh was nominated. And, in West Virginia, Senator Joe Manchin’s Republican opponent, Patrick Morrisey, predicted that Manchin would eventually cave to Republican pressure, “because at the end of the day, this is about his political survival.” Otherwise, Morrisey said, “he will be assuredly going down in defeat in November.”

The question of whether centrist Democrats will pay a price for opposing Kavanaugh could be at the heart of which way the nomination goes. Given the Republicans’ 51–49 majority in the Senate, Democrats will need every Party member’s vote, plus at least those of two Republicans, to block the confirmation. Democrats have pinned their hopes on getting the votes of two pro-choice Republican women in the Senate: Susan Collins, of Maine, and Lisa Murkowski, of Alaska, both of whom previously broke with their party to support the Affordable Care Act. But both have so far remained noncommittal about Kavanaugh, who has a polished, decade-long record on the U.S. Court of Appeals in Washington, D.C.

The Democratic senators facing tough reëlections in red states have been noncommittal as well. On Thursday, McCaskill, for instance, told a reporter, “If you’re going to ask me questions about the Supreme Court nominee, I have absolutely nothing to say.” Political experts in Missouri whom I spoke to were split over the political ramifications if she votes against Kavanaugh. Jay Felton, a well-connected Republican lawyer and farmer in the state, told me that he thinks the Supreme Court fight “creates a nice, clean issue” on which her likely opponent, Josh Hawley, “can differentiate himself.” Felton also thinks Hawley “can use it to motivate his base.” But Adam Sachs, a lawyer and lobbyist in Kansas City who has worked as a Democratic congressional aide in the past, thinks the peril is overblown. “I think it matters, but I’m not sure how much,” he argues. “It’s not determinative. Voters already know she voted against Gorsuch, so it wouldn’t be a surprise.”

While McCaskill opposed Neil Gorsuch, Trump’s previous nominee to the court, three of the other Democratic senators who are facing tough reëlections this year in Trump-friendly states—Joe Donnelly, of Indiana; Heidi Heitkamp, of North Dakota; and West Virginia’s Manchin—defected from the Democratic side to confirm Trump’s choice last year, putting them under intense pressure from both sides now.

“No question, it’s an uphill battle for Kavanaugh’s opponents—the Republicans have more votes, but I think it’s winnable,” Ron Klain, a Democratic lawyer in Washington and former Senate Judiciary Committee staff member who is the veteran of numerous Supreme Court confirmation fights, told me.

If the past is prologue, what looks like the politically safest course now may turn out to be just the opposite later. Certainly, this was the lesson of 1991, when eleven Democrats defected from their side and voted to confirm George H. W. Bush’s Supreme Court nominee Clarence Thomas. Several Democrats evidently hoped to placate voters in their home states who were incensed at Anita Hill after the previously unknown law-school professor accused Thomas, her former boss at the Equal Employment Opportunity Commission, of sexually harassing her on the job. At the time, for centrist Democrats, casting a vote in favor of Thomas seemed the course of least political resistance.

But Klain, who was an aide on the Senate Judiciary Committee at the time, recalls that, instead, the Thomas confirmation triggered an unexpected political backlash, particularly among women who felt that the men in the Senate had disrespected women’s rights. The following year, a wave of female candidates ran for office, much as they are running now. In fact, 1992 came to be known as “the year of the woman.” Unexpectedly, several of the Democratic senators who had voted to confirm Thomas, including Alan Dixon, of Illinois, and Wyche Fowler, of Georgia, found themselves defeated. Dixon, in fact, was knocked out in the Democratic primary by a black female candidate, Carol Moseley Braun. Others, such as Chuck Robb, of Virginia, were reëlected but never fully escaped the cloud that hung over their records. Even Joe Biden, the Democratic chairman of the Judiciary Committee, who opposed Thomas’s confirmation, but whose treatment of Thomas was seen by critics as too deferential, continues to be dogged by it almost three decades later.

“The Senate had a revolution because of that vote,” Klain said. “All of these people wrongly believed that their constituents wouldn’t forgive a no vote. But it was exactly the opposite,” he said. “I don’t know anyone who suffered because they voted no on Clarence Thomas. But I know plenty who did because they voted yes.”

Nan Aron, the president of Alliance for Justice, a progressive group, who was also involved in the Thomas confirmation fight, agrees. “The conventional wisdom is that a vote against the nominee will hurt Democrats, but the reality that we’ve seen in the past is that it’s sometimes the right vote for Democrats politically. Votes for Thomas deflated the Democratic vote” afterward in some Senate races. As for this year, she says, “Look—Democrats in red states need the progressive base. You don’t need them staying home.”

On Saturday, two progressive groups—Demand Justice, a new organization focussed on judicial issues, and the Center for American Progress—planned to release a poll, conducted in the battleground states of Indiana, Missouri, North Dakota, and West Virginia, that seeks to convey a similar message to vulnerable Democratic senators.

According to the poll, conducted by Hart Research Associates, Democratic senators may actually be better off politically, even in states that went overwhelmingly to Trump in 2016, if they cast votes against Kavanaugh. The polling data, which was gathered between June 30th and July 5th from about twelve hundred voters in those four states, are, of course, self-serving. But it makes the case that, if Democratic senators in conservative states frame their opposition to Kavanaugh clearly as a matter of conscience, based on one of three possible arguments, a majority of voters will likely accept and support the decision. The survey shows that fifty-four per cent of voters polled in these states said they would approve of a Democratic senator opposing Trump’s choice for the Supreme Court if it protected the independence of the Court as a check on Presidential power. The same slim majority of voters would support their Democratic senator opposing a Trump nominee if his or her opposition was based on the nominee having “a record of siding with corporations” and “consistently ruling against workers’ rights.” Additionally, fifty-two per cent of these voters said they would approve of their senator opposing any nominee who was “likely to overturn/eliminate protections” in the Affordable Care Act for those with “pre-existing conditions, people over age fifty,” and“women.”

According to the poll, two-thirds of the voters in these states, including a majority of Republicans, want the Supreme Court to uphold protections in the health-care act for people with preëxisting medical conditions. Democratic voters, of course, overwhelmingly take this position, and support their senators opposing a Supreme Court nominee on these grounds, but, interestingly, the poll suggests that sizable majorities of those categorized as “swing voters” and “independents” share the view.

Democrats, who are casting for an effective line of argument against Kavanaugh, see the health-care issue as their best bet to date. They claim his record shows a predisposition against the Affordable Care Act, and they argue that, if confirmed, he may well have the opportunity to deal the deciding blow to the law. There is an ongoing constitutional challenge to the health-care law that was filed in Texas by seventeen state attorneys general and three governors in Republican states. Recently, the Trump Administration’s Justice Department informed the court that it would not intervene to defend the existing law. Legal experts consider the case a long shot, but it nonetheless stands a chance of reaching the Supreme Court, raising the stakes around Kavanaugh.

Outside advocacy groups, stocked with “dark money” contributions from undisclosed donors, are lining up to turn the court fight into a full-blown political brawl. One such group, the conservative Judicial Crisis Network, pledged ten million dollars in support of Gorsuch’s confirmation and has already spent $1.4 million to confirm Kavanaugh. Meanwhile, Demand Justice has committed to spending five million dollars against Kavanaugh’s confirmation. On Friday, Demand Justice launched its first round of television ads aimed at the fence-sitting Democratic senators. (The group previously aired ads aimed at the undecided moderate Republicans, Collins and Murkowski). The new ads are aimed at pressuring Donnelly, Heitkamp, and Manchin. Running in the senators’ home states, the thirty-second spots thank the members for their past support for the health-care act, but then turn more ominous. As the Indiana version of the ad says, “Thanks to Senator Donnelly, more than 2.7 million Hoosiers with preëxisting conditions still have access to affordable health care. But those protections are at risk again, this time in the courts.” Growing darker, the ad warns, “Kavanaugh refused to uphold key patient protections in the past, and, if he joins the Court, he could vote to end these protections for good.”

In Indiana, where Donnelly, a conservative Democrat in an even more conservative state, is very much in the undecided camp on Kavanaugh, Kip Tew, the former state Democratic Party chairman who is now a lobbyist, told me that, contrary to what most people think, “I think he’s got an easy vote to make.” He argued that conservatives were already against Donnelly, so he’d never win their votes anyway, and the centrist votes he needs won’t be affected by the Supreme Court fight. “The middle doesn’t care about this vote—they care about their paychecks and jobs,” he told me. “Most people can’t even name all nine Justices!”