The Senators Who Will Make or Break Kavanaugh's Nomination

A handful of votes from each party will determine whether Trump's second Supreme Court pick gets seated.

President Trump greets Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House on Monday.
AP Photo/Evan Vucci
Alex Rogers
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Alex Rogers
July 9, 2018, 9:33 p.m.

President Trump nominated federal appeals-court judge Brett Kavanaugh as his second appointment to the Supreme Court on Monday evening, in a bid to create the most conservative Court in decades and galvanize Republican voters ahead of the midterm elections.

“This incredibly qualified nominee deserves a swift confirmation and robust bipartisan support,” said Trump, who stood next to Kavanaugh and his family in the White House.

If confirmed by the Senate, Kavanaugh will replace his old boss, Justice Anthony Kennedy, a retiring conservative who served as the longtime swing voter during his 30 years on the bench, raising the political stakes for several senators at the center of the confirmation battle.

Outside groups have already drawn sharp lines. The conservative Judicial Crisis Network will spend $1.4 million in the coming weeks to air advertising boosting the nominee in states where campaigning Democratic senators, including Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia, feel the greatest pressure to vote yea. The liberal Demand Justice group is planning a $5 million outreach campaign in those states plus Maine and Alaska, in an attempt to flip the two moderate Republican senators, Susan Collins and Lisa Murkowski, who voted to confirm him to his current position in 2006.

Since Republicans hold the slimmest of majorities in the Senate—50-49—during the absence of the ailing Sen. John McCain, Trump needs to either hold all Republicans together or woo Democrats with his pick.

Kavanaugh had the inside track to the nomination since Kennedy announced his retirement two weeks ago. He was the favorite of White House counsel Don McGahn, who supervised the search, and had the glittering résumé—Yale University, Yale Law School—that Trump reportedly desired.

When he was running for president, Trump put out a list of potential nominees from the American heartland for the Supreme Court, and then added five more, including Kavanaugh, to the list after he was elected. Both Kavanaugh and Justice Neil Gorsuch, who replaced the late Justice Antonin Scalia after Republican senators changed the vote threshold from 60 to a simple majority, served as law clerks to Kennedy and went to the same high school, Georgetown Preparatory School, in Bethesda, Maryland.

Kavanaugh is a favorite of the Federalist Society, an extraordinarily influential outside group on putting forward conservative judicial nominees. But Senate Majority Leader Mitch McConnell told Trump last week that other nominees had an easier path towards confirmation in the Senate, according to The New York Times. He viewed Kavanaugh’s long judicial and political record—12 years on the United States Court of Appeals for the District of Columbia Circuit, White House staff secretary under President George W. Bush, and deputy to Kenneth Starr, the independent counsel who investigated President Clinton—as particularly open for criticism from antiestablishment conservatives like Sen. Rand Paul, as well as Democrats.

Due to his experience contributing to the Starr report, Kavanaugh will also likely face questions before the Senate Judiciary committee on the proper exercise of executive power. While he holds an expansive view of potential impeachable offenses, Kavanaugh has also suggested that presidents should not have to work under the cloud of indictments while they are in office.

In a statement on Monday, McConnell said, “President Trump has made a superb choice.

“This is an opportunity for Senators to put partisanship aside and consider his legal qualifications with the fairness, respect, and seriousness that a Supreme Court nomination ought to command,” he added.

In 2004, during Kavanaugh’s nearly three-year path from nomination to confirmation to the federal appeals court, Sen. Chuck Schumer, now the Democratic leader, said, ''Mr. Kavanaugh would probably win first prize as the hard Right's political lawyer.”

On Monday, Schumer said in a statement that he would “oppose Judge Kavanaugh’s nomination with everything I have.

“In selecting Judge Brett Kavanaugh for the Supreme Court, President Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block,” Schumer said.

Democrats are trying to make the judicial battle about health care and abortion, two areas where the public polling is in their favor. And they’re positioning that argument for the two Republican senators most likely to join them: Collins of Maine and Murkowski of Alaska, both of whom favor abortion rights and are willing to buck the party leadership. Last year, McCain joined them in voting against the Republican effort to repeal the Affordable Care Act amid tremendous pressure from all sides and reports showing that the proposals would increase the number of uninsured by millions and increase health care costs for the poor and elderly.

In recent interviews, Murkowski has said that the landmark 1973 Roe v. Wade case deciding the constitutional right to abortion is one of the factors she’ll weigh in making her choice, but not the only one. On CNN, Collins said that she “would not support a nominee who demonstrated hostility to Roe v. Wade” because that would reflect a lack of “respect” for precedent.

Kavanaugh recently dissented in a case where the court supported an undocumented teenager’s right to an abortion, rejecting a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

In his speech Monday, Kavanaugh said that a majority of his law clerks had been women, and said that a judge must be “independent and must interpret the law, not make the law.” He added that a judge “must interpret the Constitution as written, informed by history and tradition and precedent.”

If Trump loses Collins or Murkowski, he’ll likely have to pick up either Manchin, Donnelly, or Heitkamp, three red-state Democrats who have met with Trump to discuss the vacancy and were invited to go to the White House Monday but declined. They voted for Neil Gorsuch last year, even though Democrats were still livid over McConnell’s unprecedented decision to block President Obama’s nominee, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, for eight months until the 2016 presidential election.

But instead of paying a political price for his obstruction, McConnell’s decision galvanized conservatives to Trump’s campaign and helped him win the election. Now Democratic strategists like Brian Fallon, the executive director of Demand Justice, have acknowledged that they need to do a better job rallying their voters over these extraordinarily powerful positions on the courts.

“In choosing Brett Kavanaugh, Donald Trump is declaring he wants a fight,” wrote Fallon Monday, as his group set up a new website, stopkavanaugh.com. “Brett Kavanaugh will be hostile to Roe, hostile to Obamacare, and friendly to Donald Trump in a constitutional showdown with Robert Mueller.”

That effort begins with trying to keep Manchin, Donnelly, and Heitkamp in line voting against the nomination with other Democratic senators, even though they’ll potentially face a much higher political cost. They are all up for reelection this year in states that voted for Trump over Hillary Clinton in 2016 by anywhere between 19 and 42 points.

So far, they’ve kept their options open. Donnelly told The Indianapolis Star he’s going to make his decision “without a litmus test.” Heitkamp said she wants someone who is “pragmatic, fair, compassionate, committed to justice, and above politics.”

And Manchin told The Washington Post he wants somebody who is “well qualified, understands the Constitution and rule of law.

“That's it,” he added.

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