Supreme Politics

By Jim Ellis

July 11, 2018 — President Donald Trump’s choice of US Circuit Judge of the DC Court of Appeals Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy will likely fundamentally change the 2018 Senate election cycle.

Judge Brett Kavanaugh at the White House, where President Trump nominated him to replace retiring Supreme Court Justice Anthony Kennedy. | C-SPAN

Judge Brett Kavanaugh speaks at the White House, where President Trump announced Monday that Kavanaugh would be his nominee to replace retiring Supreme Court Justice Anthony Kennedy. | C-SPAN

With Senate Majority Leader Mitch McConnell (R-KY) already publicly indicating that he is planning to keep the Senate working through August, the Supreme Court confirmation process now guarantees such will happen. With majority Republicans having leverage over the confirmation hearings and vote schedule, we can expect a great deal of politics will be accompanying the legal rhetoric that awaits us during the remaining summer months.

The Senate political map helps Judge Kavanaugh in his confirmation battle. Both sides will mount crushing pressure on those members perceived as swing votes, and the eventual targets will be backed into such a position where it will be impossible to avoid political damage once their eventual vote is cast. The three Democrats who supported Supreme Court Justice Neil Gorsuch when he was confirmed on April 7, 2017 are:

  • Sen. Joe Donnelly (D-IN)
  • Sen. Heidi Heitkamp (D-ND)
  • Sen. Joe Manchin (D-WV)

The three will naturally be the top targets for this confirmation battle, and there is a strong chance that each will also vote for Judge Kavanaugh. Already trapped in tough re-election battles, these senators will be hard-pressed by both sides pushing them to vote for or against Kavanaugh; but considering their respective states voted for President Trump in margins of 19 (IN), 36 (ND), and 43 (WV) percentage points suggests the density of pressure to support the nominee will overwhelm the opposition.

After last night’s announcement, Sen. Manchin issued a statement saying he is particularly interested about Judge Kavanaugh’s position on healthcare issues, especially those affecting people with pre-existing conditions as they relate to healthcare insurance coverage. Sen. Manchin says over 800,000 people in his state of West Virginia fall into this category.

But, the aforementioned are not alone. Seven other Democrats on the 2018 ballot come from states that the president carried, including Montana (Sen. Jon Tester) and Missouri (Sen. Claire McCaskill) where the respective 20-point and 19-point Trump victory margins were obviously substantial.

The president’s margin was much less in one other state, Ohio (eight points; Sen. Sherrod Brown), and only a slight plurality in Florida (one point; Sen. Bill Nelson), Michigan (one point; Sen. Debbie Stabenow), Pennsylvania (one point; Sen. Bob Casey Jr.), and Wisconsin (one point; Sen. Tammy Baldwin).

Among five Democratic senators who publicly stated Monday night they will oppose the Kavanaugh nomination post-announcement, in addition to the party leadership, is Pennsylvania Sen. Casey who is from one of the states Trump carried with a plurality. Two more are members of the confirming Senate Judiciary Committee — Sens. Kamala Harris (D-CA) and Cory Booker (D-NJ).

Another pair who can expect extreme pressure from both sides are the new Democratic senators: Doug Jones, who won the 2017 Alabama special election to replace attorney general and former Sen. Jeff Sessions (R), and appointed Minnesota Sen. Tina Smith (D), who is resigned Sen. Al Franken’s (D) replacement. Sen. Jones, however, is not on the 2018 election ballot. He next comes before the voters in 2020.

The body’s other new senator, appointed Republican Cindy Hyde-Smith of Mississippi, can be expected to support the nominee. She, too, will be on the ballot later this year and comes from a state that Trump won with an 18-point margin.

The lone Republican on the ballot from a contested state is Nevada Sen. Dean Heller. Obviously, the two other Republicans who will receive intense pressure are Alaska’s Lisa Murkowski and Susan Collins of Maine.

In addition to healthcare, abortion, and free speech issues, we can expect concentrated lobbying over gun control. How the persuasion campaign and the eventual responses to such unfold will greatly impact the fall Senate campaigns and may be determinative in more than one political situation.

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