It’s Not All Bad: The Political Upside to the Kavanaugh Confirmation

by Benjamin Studebaker

I’ve been picking at Brett Kavanaugh’s nomination for a while now. I emphasised that if the midterms weren’t coming, the Republicans would have bailed on Kavanaugh long ago. I pointed out how Kavanaugh trafficked in emotional manipulation to survive his hearing. I noted that in the past, Americans would have been much less tolerant of the lies Kavanaugh told while under oath. But despite my efforts and the efforts of many other people, it seems just about certain that Kavanaugh will be confirmed tomorrow. Senator Susan Collins (R-ME) has aligned herself with the Republican leadership, and Senator Joe Manchin (D-WV) has followed suit. Many will write long lamentations about this. Others will rip Collins and Manchin for failing to align with us. You can read those pieces elsewhere. But I’ve been watching the numbers this past week, and I’ve come around to the view that in the long-run, the left will benefit from Kavanaugh’s confirmation. Here’s how.

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If you looked at 538’s midterm projects in September, they were pretty good for the Democrats. At one point they showed an 80% chance of taking the House and even a 32% chance of taking the Senate. This was a really significant chance of recapturing both houses–538’s projections only put Trump at a 28% chance of victory in 2016. Trump’s approval had also slid back a bit, to just under 40%.

But then Kavanaugh happened. The Kavanaugh nomination matters to base voters a lot. For conservatives who don’t love Donald Trump, the Supreme Court is a big part of why he and the Republicans are worth supporting. The Democrats’ strategy on Kavanaugh was clear–block his nomination, but do it late enough that the Republicans wouldn’t have time to confirm a replacement justice before the midterm. Then win the senate in the midterm and use the senate to block any further conservative judicial appointments. The Republicans who were wavering about coming out for this president’s version of the Republican Party see the writing on the wall. And in these midterms, there are many red state Senate seats open. So in the competitive races in the red states, the Republican base was galvanised, and its energy is now showing up not merely in individual polls, but in the 538 projection itself.

The Democrats now only have a 72% chance of taking the House and a 21% chance of taking the Senate. In places like Arizona, Nevada, and Indiana, where Democrats once led by 5 or 10 points, it is increasingly a tossup.

If the Democrats don’t take the Senate, blocking Kavanaugh would have limited political utility. The Republicans could simply nominate a new conservative justice in 2019. That new conservative justice wouldn’t have Kavanaugh’s sexual assault allegations and probably wouldn’t scream and weep during their confirmation hearing, but they would probably rule the same way Kavanaugh would rule all or nearly all of the time. All of President Trump’s judicial nominees come from lists vetted by the very conservative Federalist Society–they all believe in the same broad set of things. Not only would the Republicans still get to appoint a deeply conservative judge, but their Senate majority would enable them to continue appointing more conservative judges as and when vacancies arise.

A lot of people don’t seem to realise this–prior to Collins’ announcement, when there still appeared to be some chance things could go either way, I surveyed my Facebook readers and friends. I asked them whether they would prefer to stop Kavanaugh or take the Senate, if faced with a situation in which they can only have one of these things. In both the reader poll and the friend poll, the results are split pretty evenly. They shouldn’t be split evenly! If the Democrats fail to take the senate, Trump can continue making lots and lots of bad appointments, over and over, for the next two years. Any person who is rejected because of personal failures can be replaced with a philosophical clone with a cleaner private record.

If Kavanaugh gets in as expected, the Democrats have a better chance at the Senate. The Republican base lose a key reason to show up at the polls. At the same time, Democrats remain motivated, and perhaps they are even more motivated now than before–they can clearly see what happens when you don’t control the Senate, and they want to put a stop to it. Kavanaugh’s confirmation should give Democratic turnout a sharp boost. The Democratic base actually cares more about Kavanaugh than the Republican base does–the problem in the last two weeks has been that most of these Senate races are occurring in red states where there isn’t a large Democratic base to turnout, so aggravating both bases has played to the advantage of the GOP. Republicans were less agitated, but there were far more of them in places like Indiana or Arizona.

But with Kavanaugh confirmed, we may see movement back to the September poll position, with disengaged Republicans leaving an opening for an energetic but smaller number of Democrats to flip races in traditionally red states. Perhaps the position will even be better than September, since Democrats are likely to be even more energetic now than they were then. Turnout is much more important in midterm elections than in presidential elections, because baseline turnout in the average midterm is so much lower. In midterms, you don’t need to win over that many new voters–you just need yours to show up.

The Democrats won’t get the seats to convict Kavanaugh for perjury, at least not in 2018 (you need a supermajority swing that). But there’s still a chance they can get enough seats to ensure no one else like him gets appointed to the federal bench or the cabinet at any level for the rest of Trump’s first term. With Kavanaugh confirmed, that chance should improve.