Senate Democrats up for reelection face a tricky decision in the next two weeks that could very well determine their political futures: whether to vote for Judge Brett Kavanaugh's nomination to the Supreme Court.
Their colleagues’ protests at the hearings last week appeared to do little to affect the nominee’s chances. None of the 51 Republican senators seem willing to vote against him, paving the way for Kavanaugh to be confirmed by the first Monday of October, when the Supreme Court’s term begins.
But Democratic senators campaigning in red states have a tougher choice as they try to woo both their base voters, who want their members to resist everything from the Trump administration, and more-conservative voters they will need to win in November.
A new poll from Demand Justice, a group that has spent millions of dollars opposing the nomination, asserts that about a third of voters backing Democrats in Florida, Indiana, Missouri, North Dakota, and West Virginia would be less likely to support their senators if they voted for Kavanaugh. It also showed that the Kavanaugh nomination wouldn’t sway a majority of undecided voters in those states, reflecting the general ambivalence of independent voters seen in other polls.
Trump picked Kavanaugh to succeed Justice Anthony Kennedy, a conservative who sided with liberals on some hot-button issues, including reaffirming the central abortion rights protected by in Roe v. Wade. Demand Justice is pressuring Democratic senators to view opposing Kavanaugh for a lifetime appointment as not only good policy, but also good politics.
“I question if anyone who says red-state Dems will be hurt by opposing Kavanaugh has actually looked at a poll in those states,” wrote Executive Director Brian Fallon in a tweet.
Some Democratic senators don’t appear to have gotten that message. In recent interviews with local media outlets, senators have maintained they’re still reviewing the nominee’s record.
“I think that it has been important that he’s emphasized the fact that he would be impartial,” said Indiana's Joe Donnelly in a recent interview on the Indianapolis Fox affiliate. “That’s critical for a Supreme Court justice—to not be pro-this-side or pro-that-side, pro-plaintiff, pro-defendant—but to be pro-the Constitution.”
Donnelly, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia voted for Trump’s previous Supreme Court nominee, Judge Neil Gorsuch, to succeed the late Justice Antonin Scalia. All three senators have met with Kavanaugh, while many of their Democratic colleagues have already announced their opposition.
Last week, Democrats on the Senate Judiciary Committee attempted to delay the nomination hearings until they could gain access to thousands of documents to more thoroughly review his record.
When Republicans rebuffed those calls, Democrats tried to pin Kavanaugh down on whether he would somehow try to protect the president as Special Counsel Robert Mueller investigates Russian interference in the 2016 election. For days, Kavanaugh maintained that he would be an independent judge. In a recent interview, that appeared to be enough for Donnelly, who said he did not share the worries of his more liberal colleagues.
"The president's issues and challenges he has are one thing, the Supreme Court is something else," said Donnelly. "So I'm ready to work when the work is before us. This is moving forward, and I'm ready to do all the work that's required of me."
On Wednesday, the panel's chairman, Iowa GOP Sen. Chuck Grassley, said Democrats subsequently submitted 1,278 questions for the record to Kavanaugh—more than ever before. “Submitting this many written questions appears to be just one more effort to gum up the process,” said Grassley in a statement. “It’s unnecessary and dilatory, especially when many have already decided to vote against Judge Kavanaugh. What more do they need to know to vote ‘no’?”
Yet conservatives claim that Kavanaugh is well-received where it matters most—in the states where vulnerable Democrats are running for reelection. Conservative groups such as the National Rifle Association, America First Policies, and Americans for Prosperity have spent millions of dollars to move public opinion in those states.
So far, the conservative Judicial Crisis Network says it has spent about $8 million on advertising during the Kavanaugh nomination, including about $2 million in Indiana, West Virginia, North Dakota, and Alabama, where Sen. Doug Jones will face reelection in 2020.
Carrie Severino, JCN’s chief counsel, told National Journal that Kavanaugh, who has served for 12 years on the Court of Appeals for the D.C. Circuit, is “very popular” in conservative states such as West Virginia and North Dakota, praising the nominee as “so overwhelmingly qualified, even-handed, fair, [and] independent.”
“This is going to be one of those things that the country focuses on for more than a day,” adds Josh Holmes, Senate Majority Leader Mitch McConnell’s top political lieutenant, in referring to the blanket press coverage that the Kavanaugh nomination has received. “You have at that point an opportunity to show either a partisan allegiance or not. And for senators that are representing a largely Republican electorate as a Democrat, I just don’t think you could afford to go the other way.”
Meanwhile, Demand Justice and other liberal groups, including the Planned Parenthood Action Fund and NARAL Pro-Choice America, unveiled ads this past week aiming to pressure Republican Sens. Susan Collins of Maine and Dean Heller of Nevada to vote against the nominee.
Most of the political world’s focus on the 2018 election is on whether the House will flip to the Democrats. And while Democrats would have to run nearly perfect campaigns across the country to win back the Senate, Republicans have rung the warning bells that there are a number of races that could determine Senate control next year.
McConnell recently said that races in Arizona, Nevada, Tennessee, Montana, North Dakota, Missouri, Indiana, West Virginia, and Florida were “too close to call” and “like a knife fight in an alley.”
The millions of dollars pouring into races across the country on the Kavanaugh nomination will only increase the intensity of those fights. It remains to be seen how those remaining undecided voters in the middle will respond.
“I don’t see either side of this being a ‘political winner,’” Missouri Democratic Sen. Claire McCaskill said at a recent event at the University of Missouri-Kansas City, according to The Kansas City Star.