OPINION
08/03/2018 05:45 am ET

Brett Kavanaugh's Confirmation Is Far From Inevitable

Lucas Jackson / Reuters

Many of the oh-so-wired political commentariat have declared Brett Kavanaugh’s confirmation to the Supreme Court all but inevitable. The New York Times called Democrats’ effort to block his confirmation a “long-shot” and an “uphill struggle.” The Washington Post has portrayed Democrats as divided and uncertain about how to fight the nomination.

This framing plays right into the hands of Senate Majority Leader Mitch McConnell, who hopes to create a self-fulfilling prophecy that collapses any opposition to Kavanaugh. In fact, confirmation is far from inevitable. Here are five reasons why.

Reason #1. The path to confirmation is extremely narrow.

Given Sen. John McCain’s (R-Ariz.) illness, Republicans have a tiny effective majority of 50 to 49 in the Senate. If Democrats all vote against confirmation — which is not impossible — Republicans must unanimously hold the line.

Two of the Republicans who voted against ending the Affordable Care Act — Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — are still very much in play, despite early signals that some think may mean they are leaning toward confirmation. Three other Republican senators may also be unreliable votes for confirmation, depending on how the confirmation process plays out: Jeff Flake of Arizona, Dean Heller of Nevada and Cory Gardner of Colorado. 

Much is made of the political peril confronting three Democrats who are up for re-election in red states: Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana. But there are very good political reasons for each of them, after careful consideration, to vote no.

With such a small number of votes in play, anything can go wrong. It took just one “no” — that of the only African-American GOP senator, Tim Scott (S.C.) — to cause the withdrawal of Circuit Court nominee Ryan Bounds after a review of records showed racist writings in his past. And all this assumes the math doesn’t swing even further in Democrats’ favor (more on that later).

Reason #2: Opponents of Kavanaugh have the political high ground on the key issues — abortion, health care and executive power.

Kavanaugh’s record indicates he would likely vote to reverse the narrowly decided Supreme Court ruling finding the Affordable Care Act constitutional. That allows opponents to argue that if a senator votes for confirmation of Kavanaugh, he or she is voting to take away your health care. This is the issue that caused Murkowski and Collins to dramatically break with their party last summer, and you can expect it to take a major role in efforts aimed at swaying their votes again.

There is also very little question that Kavanaugh would vote to gut Roe v. Wade, which gave women the right to choose to terminate a pregnancy. Yet a recent Wall Street Journal/NBC poll found that 71 percent of Americans oppose repealing Roe, including 52 percent of self-identified Republicans. Even in red states like Manchin’s West Virginia, Heitkamp’s North Dakota or Donnelly’s Indiana, voters don’t want a woman’s right to make her own choices about pregnancy taken away.

Supreme Court nominee Brett Kavanaugh's views on abortion are one source of intense opposition to his confirmation.
Mark Wilson via Getty Images
Supreme Court nominee Brett Kavanaugh's views on abortion are one source of intense opposition to his confirmation.

The recent disclosure of Kavanaugh’s writings that appear to support the view that presidents cannot even be investigated for wrongdoing while they are in office presents another massive vulnerability. This issue should be of particular concern to Sen. Flake of Arizona. And it will become increasingly important as Trump’s legal problems worsen over the fall.

The argument that the Senate should take no action on a Trump Supreme Court nomination until special counsel Robert Mueller’s investigation is complete should be compelling to many voters.

Finally, Kavanaugh has a consistent record of backing CEOs and wealthy corporations over the interests of workers and ordinary consumers. That’s a particularly huge negative in states like West Virginia, North Dakota and Indiana, where it will be easy to cast the nominee as an Ivy League, East Coast, pro-business establishment insider who hangs out — and votes with ― corporate bigwigs.

Reason #3: There is an unprecedented nationwide campaign to resist Kavanaugh’s confirmation.

The jaded D.C. pundits need to get out more. Progressives are mounting a more robust grassroots challenge to Kavanaugh’s nomination than to any nomination in the last 50 years.

Major progressive institutions, women’s rights groups, health care advocates, the disability rights community, the gun violence prevention movement, and already mobilized resistance organizations like Indivisible and the Women’s March have all engaged their networks around the country. Several months ago a new progressive organization, Demand Justice, was formed to raise the funds to fight the battles over this and other judicial nominations.

The recent American political battlefield is replete with inevitable outcomes that never happened.

These efforts mean key senators will be inundated by phone calls, in-state press events and visits from constituents.

Kavanaugh already has lower polling numbers than any Supreme Court nominee since Harriet Miers, who ultimately removed her name from nomination. A recent Quinnipiac poll showed a plurality of Americans are against his confirmation. He is polling well below Neil Gorsuch at a similar time in the nomination process.

And it’s only beginning. All of these forces have combined to plan a massive nationwide day of action against the Kavanaugh nomination — something unprecedented in Supreme Court battles — on Aug. 26.

Reason #4: The timeline for a confirmation vote may get pushed past the midterms.

Republicans said they hoped to speed the Kavanaugh nomination to a vote in September. The reason was simple: The longer the process drags on, the more likely new road blocks will emerge from his voluminous record.

So they were dealt a major blow when the National Archives said Thursday that they wouldn’t be able to produce all of the records that Senate judiciary committee Chair Chuck Grassley (R-Iowa) had requested for review until the end of October. Democrats are demanding even more documents, including those from Kavanaugh’s time as President George W. Bush’s staff secretary. They point out that when Elena Kagan was confirmed, GOP senators demanded and got all of the records of her time in a Democratic White House. To push on without allowing time for thorough document review, as Republicans indicated they might, would be yet another reason for moderates to vote against confirmation.

Republican members of the Senate judiciary committee Thom Tillis (N.C.), Orrin Hatch (Utah), John Cornyn (Texas), Chairman Ch
Chip Somodevilla via Getty Images
Republican members of the Senate judiciary committee Thom Tillis (N.C.), Orrin Hatch (Utah), John Cornyn (Texas), Chairman Chuck Grassley (Iowa), and Mike Lee (Utah) at a news conference about Supreme Court nominee Judge Brett Kavanaugh on Aug. 2.

If the timeline for confirmation does get pushed back, a likely Democratic wave in the Nov. 6 midterms, including an outside chance at taking control of the Senate, could dramatically alter the calculus for moderate senators on both sides of the aisle. Democrats like Heitkamp may feel less immediately threatened, and Collins and Murkowski may see less incentive to toe the party line.

Reason #5. It ain’t over till it’s over.

The recent American political battlefield is replete with inevitable outcomes that never happened.

Every pundit in Washington knew, for certain, that Hillary Clinton would be the next president. Last year, conventional wisdom was certain that the Affordable Care Act would be repealed. And if you had told a group of D.C. pundits shortly after Donald Trump was elected president that a Democrat would be elected to the Senate from Alabama, you’d have been laughed out of the room.

Kavanaugh’s confirmation will ultimately hinge on the political calculation made by a few key senators. There’s still a very good chance that, in the end, Collins and Murkowski will make the same calculation they made during the ACA battle — that voting to take away people’s health care, or their reproductive rights, is too steep a price for them to pay both personally and politically. And the more that comes out during the confirmation process, the more possible it is that senators like Flake, Gardner or Heller could find cause to waver.

Despite heavy GOP and business group pressure, the Democrats running in states carried by Trump are likely to feel that Kavanaugh’s probable vote to take away heath care will give them the political cover to vote no. That is especially true when they calculate in the fact that they need a motivated, energized Democratic base to win re-election. 

No, Kavanaugh’s confirmation is far from inevitable. Baseball great Yogi Berra was right: We won’t know the outcome of this high stakes game until the very last out. Stay tuned.

Robert Creamer is a long-time political organizer and strategist, and author of  Stand Up Straight: How Progressives Can Win. He is a partner in Democracy Partners. Follow him on Twitter @rbcreamer.

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