It’s a cold, hard truth: Republicans hold a 51-49 majority in the Senate — 50-49, taking into account John McCain’s enduring absence — so there is no way that Senate Democrats can singlehandedly prevent Supreme Court nominee Brett Kavanaugh from settling into Anthony Kennedy’s seat and steering the court sharply rightward. What Democrats can do is band together, as they have on Obamacare repeal and tax cuts, and force complete Republican unanimity to squeeze Kavanaugh through, making any break in the GOP ranks, however unlikely one is to materialize, fatal to his chances.
Eight Democratic Senators, most of whom face tough elections in November, have not yet signaled which way they will vote on the 53-year-old conservative hero’s nomination. (Three of these senators defected from the rest of their party to vote for Neil Gorsuch back in April.)
But while some reports have framed their dilemma as an agonizing, make-or-break choice, the stickiness of their predicament is likely exaggerated. The available evidence — or lack thereof — shows that there is simply no compelling reason for them to give Kavanaugh the green light. Here are five reasons why they shouldn’t bend:
1) Kavanaugh’s nomination is not popular
It’s still early going in what is likely to be a months-long confirmation battle, but three polls taken in the days after President Trump’s announcement show Kavanaugh as “one of the most unpopular Supreme Court nominees in recent history,” according to FiveThirtyEight, with only slim majorities favoring his confirmation in each. Taken together, the polls, conducted by Fox News, Gallup, and the Pew Research Center, show that Kavanaugh has a “net confirmation” rating of only five points, lower than any nominees in recent history, with the notable exceptions of Harriet Miers and Robert Bork — neither of whom went on to be confirmed.
The second is that, unlike Neil Gorsuch, who earned marginally better initial poll numbers, Kavanaugh’s confirmation would fundamentally change the balance of the Supreme Court. Many voters probably view his nomination — correctly — as far more consequential.
Republican voters really want Kavanaugh to be confirmed. But Democratic Senators like Jon Tester of Montana or Claire McCaskill of Missouri should not mistake their ardor for widespread support. And, a “yes” vote may be just as likely to alienate Democrats and Independents who fiercely oppose Kavanaugh as it is to placate Republicans.
2) The policies Brett Kavanaugh champions are even less popular
Here is a sample of positions the potential next justice has taken consistently over the years: He has voted to severely curtail the power of the government to regulate climate change without explicit congressional approval. (Most Americans want stricter enforcement.) He has endorsed a maximalist interpretation of the Second Amendment, arguing that state-level assault weapons bans are unconstitutional. (Americans favor more stringent gun laws and the banning of semi-automatic rifles.) He has been openly hostile to the Affordable Care Act, leading to worries that he could help strike down the law altogether. (Obamacare is more popular with the public than ever.) And there’s much more.
The issue that may hang over Kavanaugh’s nomination most conspicuously is abortion. While Kavanagh has never explicitly said he wants to overturn Roe v. Wade, he has made it clear, through his words and actions over the years, that that he is an avowed foe of abortion rights. Last September, he spoke approvingly of former Justice William Rehnquist’s dissent in Roe v. Wade. Those remarks flew in the face of the convention that possible Supreme Court nominees should at least make the right noises about upholding precedent. Anti-abortion activists are wild about Kavanaugh, a sure sign that they see him as the man who might finally end federal legalization of abortion, or at least roll it back drastically.
Polls consistently show that a large majority of the public favors preserving Roe v. Wade. Susan Collins and Lisa Murkowski, the two most moderate Republican Senators, do too.
It’s hard to find a policy Kavanaugh has championed that enjoys actual popularity among Americans. As Eric Levitz wrote this week, Kavanaugh represents a well-mannered establishment conservatism that has diligently worked to “insulate the policy preferences of reactionary elites from majoritarian opinion.” There is no vast constituency for Kavanaugh’s views, just as there isn’t one for Paul Ryan’s.
3) There is no clear evidence that voting for Kavanaugh will help in November
One reason vulnerable Democrats have voted for some of President Trump’s most controversial judicial nominees is simple: They don’t want to be labeled obstructionists in states where the president remains somewhat popular. (In a way, some of those votes — like the ones to confirm torture-friendly CIA Director Gina Haspel — are less defensible than giving a nod to Kavanaugh, since voters are very unlikely to keep in mind relatively under-the-radar confirmation fights when they’re casting their ballots.)
Kavanaugh’s case is different for two reasons. The prospect of a transformed Supreme Court make this inherently a much higher-profile vote than anything to come down the pike in recent memory, and its proximity to the midterm elections will automatically make it a campaign-trail talking point for conservatives.
But the New Yorker’s Jane Mayer writes that “if the past is prologue, what looks like the politically safest course now may turn out to be just the opposite later.” She raises the example of Clarence Thomas, whose ultra-contentious 1991 confirmation hearing taught Democrats some important and counterintuitive lessons. Centrist Democrats figured that voting for Thomas would insulate them from Republican attacks and ease their paths to re-election the next year.
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 reelected 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.
Mayer also cites a Hart Research Associates poll (admittedly conducted by two progressive groups) showing that red state voters would be forgiving of a Democratic Senator’s “no” vote if the lawmaker framed their opposition “clearly as a matter of conscience,” and based it on either checking the president’s power, protecting workers’ rights, or preserving the Affordable Care Act.
In the run-up to a midterm election that will mostly serve as a referendum on President Trump, Democrats are rightly focused on turning out their base and convincing infrequent voters, many of whom disdain the president, to get to the polls. Republicans in states like West Virginia and North Dakota who might defy their party to vote for a member of the opposition are unlikely to alter their thinking based on good-faith opposition to Kavanaugh. And if Democrats think confirming a Supreme Court justice will stave off vicious attacks from Trump and the GOP apparatus, they’ve got another thing coming.
Senate Majority Leader Mitch McConnell has threatened to hold a vote just weeks before the election if Democrats try to prolong Kavanaugh’s confirmation with record requests. They should call his bluff.
4) Merrick Garland
You may recall (if you haven’t blocked it from your memory in an effort not to give in to insanity) that two years ago, Senate Republicans, led by McConnell, blocked President Obama’s eminently qualified Supreme Court nominee Merrick Garland from even receiving a hearing after Antonin Scalia’s death — with the bogus justification that different rules apply during presidential election years. The shameful episode is a salient illustration of just how little political effect Democratic resistance to voting for Kavanaugh is likely to have. In 2016, Democrats tried (though probably not in the most effective way) to make their unfairly spurned Supreme Court nominee into a major campaign issue. It did not work.
It’s true that in recent decades, the right has paid far closer attention than the left to matters of the judiciary; President Trump’s pre-election list of potential Supreme Court nominees was a major reason some conservatives took a flyer on him. But the people for whom Brett Kavanaugh’s place on the Supreme Court takes priority over all other electoral issues are unlikely to vote for Democrats in the first place. Red state Dems will be safe focusing on larger slices of the electorate whose mind is on other matters, like health care, jobs, or even immigration.
The Garland episode also supplies another easy justification for Democrats to say no. Most Republicans found it in themselves to expound on a made-up “Biden rule” with a straight face in 2016; there is no reason that Democrats should extend any courtesies to a president under a very real investigation who appears to have tapped the nominee most likely to shield him from that investigation.
5) It’s the right thing to do
If the political survival of a Democratic Senator depended on voting for a nominee who is likely to be confirmed anyway, it would be understandable for that senator to grudgingly get on board. And there’s certainly an argument to be made that if Collins and Murkowski signal their support for Brett Kavanaugh, lawmakers like Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota would be fools not to join them.
But beyond the midterm calculations, there are moral ones.
Brett Kavanaugh may be well-liked by seemingly everyone he has come into contact with, from his law-school students to fellow Washington carpool dads. But make no mistake: On matters of abortion, labor unions, concentration of corporate power, the environment, and so many other issues that are near and dear to (even red state) Democrats’ hearts, he is a radical — and one who is likely to wield extraordinary power to codify once-unrealistic conservative priorities into law. He poses a clear and present danger to the values Democrats hold dear.
Voting for him may blow up in red state Democrats’ faces politically. But it would also, clearly, be the wrong decision for America.