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How Should Democrats And Republicans Approach The Kavanaugh Nomination?

Welcome to FiveThirtyEight’s weekly politics chat. The transcript below has been lightly edited.

cwick (Chadwick Matlin, features editor): We’re back! President Trump started the week off with the announcement of a Supreme Court nominee, Brett Kavanaugh. We’ve covered Kavanaugh and the Supreme Court quite a bit elsewhere on the site, so today I think we should focus on the politics of the selection. The next two or three months are going to be packed with political maneuvering, and surely those politicians are looking to us for advice on what to do. So let’s run through each of the power players (Mitch McConnell, Chuck Schumer, moderate Democrats, moderate Republicans, and, to make Nate happy, Rand Paul) and talk about what their strategy should be.

Let’s start with what I think is the easiest one: Mitch McConnell. What’s his play?

natesilver (Nate Silver, editor in chief): Do that little turtle grin because you’re probably going to get a second Supreme Court justice nominated in the span of 18 months. But apart from that, I think his goals are (i) to make sure there are no surprises in the hearings and (ii) to make sure he knows where his caucus stands. You could also say (iii) to turn the screws on red-state Democratic senators, but I think that will be harder than the conventional wisdom seems to assume.

So if I’m McConnell, I’m taking a little bit more of a risk-minimizing approach.

clare.malone (Clare Malone, senior political writer): Yeah, I mean to Nate’s point, first things first: Make sure Sens. Susan Collins, Lisa Murkowski and Paul are in line for the confirmation vote. And they’ve got pretty different concerns on the nominee.

perry (Perry Bacon Jr., senior writer): I think an interesting question will be how fast do they hold the hearing and vote. They may delay a bit with the idea that a vote closer to Election Day squeezes red-state Democrats. Ed Whelan, a conservative lawyer who is supportive of Kavanaugh and pretty plugged into GOP politics, thinks they are they are aiming for a vote by Sept. 21, which would mean the Republicans are moving fairly quickly and not trying to push the confirmation vote off until the eve of the election.

natesilver: To Clare’s point, I think the key for McConnell is that he’s not fighting a multifront war. With just one axis of conflict, he’s likely got enough control of his caucus to win that argument. If Kavanaugh is taking hits from multiple sides, maybe not.

cwick: A wild-card question: If you’re McConnell, are you secretly happy if the Kavanaugh nomination falls through in September or October so that voters have to show up to ensure a GOP nominee gets seated after the midterms?

perry: No. There is a real, if small, possibility that Democrats win the Senate. So not voting on Kavanaugh before the election is way too risky for Republicans.

natesilver: We talked about that on the podcast and my answer is “no,” Chadwick. Because if things get pushed past the midterms, that means something has gone wrong. And the “something,” whatever it is, could make Trump and McConnell look ineffectual. Or trigger a lot of internecine fights within the GOP.

cwick: This is the purported mastermind who blocked Obama nominee Merrick Garland from getting a confirmation vote! Machinations are his life force.

clare.malone: I mean, I know you’re joking, but also that was really smart of him.

cwick: I think you’re underestimating Republicans’ ability to blame the nomination falling through on Democrats and use it as a get-out-the-vote mechanism.

natesilver: See, I think that establishment Republicans care a lot about Supreme Court nominations. And that influences the discourse and leads the conventional wisdom to overrate how much rank-and-file voters care. I’m not saying it’s a trivial issue, but if you ask voters what their most important concerns are, the Supreme Court doesn’t register at all.

cwick: I think with Roe v. Wade potentially on the line, you’re underestimating rank-and-file Republicans’ ability to be activated.

ANYWAY: Senate Minority Leader Chuck Schumer says he’s going to oppose Kavanaugh “with everything I’ve got.” But … aside from guile, what does he have?

clare.malone: Not that much, to be honest.

natesilver: He’s got … 49 votes. That and five bucks will get you a ham sandwich.

clare.malone: I think he can basically do the parallel of what McConnell is doing, which is basically try to keep his moderates in line (Sens. Joe Manchin, Heidi Heitkamp, Joe Donnelly, Doug Jones). But beyond that … I guess take Collins out to a fancy lunch and beg her to vote against confirmation?

natesilver: Schumer has to decide whether there’s a real chance that his party can torpedo the nomination or if everything they’re doing is just Kabuki to try to play the right way to his base.

clare.malone: Do some opposition research that finds Kavanaugh wanting?

natesilver: Sure. I mean, the guy has a paper trail. And Schumer doesn’t have to decide that today, and maybe not even for a couple of weeks. But I don’t think he wants to get stuck in between the two strategies.

perry: Forty-nine votes isn’t nothing. It’s probably not enough. I think Schumer’s goal is likely to make sure that Collins in particular declares her vote before Manchin, Donnelly, etc., have to say how they’re voting. That would keep the pressure on Collins and force her to be the 50th vote either way. Being the 50th “yes” is not ideal for her, as she will be up for re-election in 2020 in a blue state. And I think Schumer would be smart to broaden this debate from Roe to other issues, like health care.

cwick: I have a more general question: What’s the mechanism to stop a Supreme Court nomination? What do Robert Bork and Harriet Miers tell us about what takes a nominee down? Is it public pressure? (The fact that Garland didn’t even get a hearing suggests otherwise.) Scandal? (Clarence Thomas suggests otherwise.) A concern about legislating from the bench? (Three Democratic votes for Gorsuch suggest otherwise.) What would actually sink Kavanaugh?

clare.malone: Something in his record that would suggest to Collins that he leans toward overturning Roe.

perry: A personal scandal would be a problem — like sexual harassment or something like that. With Miers, it was a lack of conservative credentials, so this is not analogous to her nomination. No one doubts Kavanaugh’s experience or that he is a conservative. I think actual video of him saying, “I will vote to strike down Roe for sure, yes, sir,” would be a problem too.

clare.malone: Collins does hold a lot of power. I think she’s probably inclined to vote for Kavanaugh, though.

natesilver: To say something that’s perhaps pretty obvious, the nominations that have failed — or been unexpectedly difficult — have generally reflected either a lack of preparation or a “surprising” development.

cwick: At first glance, Kavanaugh does not strike me as that kind of nominee. It’s hard to be in D.C. that long and still have a skeleton in the closet.

natesilver: Probably not? But there’s a long paper trail, the White House apparently took a long time to decide (so preparation may not have been as good as it was for Gorsuch?) and Trump is not exactly known for having all his contingencies covered.

clare.malone: Whaaaa?

natesilver: Plus, McConnell hinted that Trump should pick someone else, which is interesting.

perry: But if Kavanaugh’s nomination sinks, I think it’s not likely to be a vote on the Senate floor where a Republican or two votes against him. Instead, I would expect it would be three or four GOP senators coming together and saying no and forcing Trump to withdraw Kavanaugh’s name. The other thing, of course, would be if he is on tape somewhere saying, “I will vote to uphold Roe,” or “Obamacare is good,” and then Paul, Ted Cruz and Mike Lee (the more conservative wing of the Senate) and the base could turn against him.

The big unknown is that Kavanagh was staff secretary under Bush. The papers he wrote in that era are likely to come out. And there could be explosive stuff there. He was a fairly senior official in an administration that, among other things, took us to war.

cwick: I think I am already regretting what I said about people in D.C. not having skeletons in the closet. D.C. creates skeletons (or at least the perception of them)!

clare.malone: FYI, from Schumer, just now:

cwick: Yeah, Schumer has said the opposition is going to be about health care and abortion, at least half of which are big issues for Democratic voters, and both of which are big issues for the Democratic base.

perry: I think it’s worth separating out opposition that is really mobilization of the Democratic base (so abortion and health care) versus opposition that could tank him. I think the latter is more like, as Nate said, not policy issues but surprising revelations about his work at the White House.

cwick: OK, let’s move on to moderate Republican senators, who came up earlier. Collins and Murkowski are both noncommittal thus far and say they’re looking forward to talking to Kavanaugh one-on-one. What’s the smartest political play for them? Is it to go along with their fellow Republicans after appearing to be nervous for a bit?

perry: Collins should wait as long as possible for the moderate Democrats (Manchin, Donnelly, etc.) to decide. Ideally, those Democrats say they will vote “yes.” Then she can vote “no” and and appeal to voters in Maine who may want her to not be aligned with Trump too often. But if it’s 49-49 (assuming McCain is unable to vote), she has to vote “yes” (being the 50th “no” invites a primary challenge and likely a well-funded one) and argue that she doesn’t know how Kavanaugh would vote on Roe because he will not say so during the hearing.

natesilver: I don’t think Collins will get away with waiting out the Democrats.

It’s a GOP president and (just barely) a GOP Senate. And she’s the swing vote — there’s still a pretty big gap between the Republicans who vote with Trump least often and the Democrats who vote with Trump most often.

perry: And Schumer, Manchin, etc., know that Collins gets an advantage if they break ranks. I was just saying what Collins should try to do, if she can.

clare.malone: I tend to think that Collins votes “yes” because she can point to his talking about judicial precedent, which might lead her to reason that he won’t vote to overturn Roe.

According to NBC News:

In his confirmation hearing in May 2006, Kavanaugh was asked by Sen. Chuck Schumer, D-N.Y., if he considered Roe v. Wade to be an “abomination.”

“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court,” Kavanaugh said, referring to the legal principle of stare decisis. “It’s been decided by the Supreme Court.”

natesilver: Yeah, that seemed like the sort of language she was looking for.

perry: The things she has been saying, that Roberts and Gorsuch won’t vote to overturn Roe, are not going to last two months of scrutiny. I’m not sure Gorsuch or Roberts are totally unwilling overturn Roe, and I’m not sure where Collins’s certainty comes from. I think she needs new talking points.

cwick: It’s a remarkable system we have in which there is no incentive for a Supreme Court nominee to do anything but play to the swing senators, as there is little chance of accountability later if a nominee rules differently than he or she promised to in public hearings or one-on-one meetings. Which is to say, this doesn’t seem like that hard of a strategy to follow if you’re Kavanaugh.

perry: Murkowski is in a conservative state — Alaska. I actually think maybe Sen. Cory Gardner in Colorado is a more interesting vote than Murkowski. Do others agree?

clare.malone: Why do you think that, Perry?

natesilver: I mean, you could make that case for Nevada’s Dean Heller too. But they’ve both gone pretty all-in on Trump, having voted with the president 92 percent of the time.

perry: Gardner is a Republican up in 2020 in a blue state. His vote is not really in play, but he should be more worried about this vote than Murkowski. I just think health care was a different issue than the Supreme Court, and I will be surprised if Murkowski is very wishy-washy on the confirmation vote even though she opposed the GOP health care bill.


clare.malone: So basically Collins favors plausible deniability.

perry: I don’t think there is much she can do. Her move could have been to ask Trump not to pick someone from the list of potential nominees the White House put out last year. Anyone from the list, I would argue, is a potential vote to overturn Roe, as that potential opposition to Roe is, I suspect, in part how these judges, including Kavanaugh, got on the list in the first place.

natesilver: Again, my view is that “something else” has to come out for the nomination to go down. That something else could be that someone discovers other statements about Roe or that he screws up an answer in the hearing. Based on what we know right now, I think Collins votes to confirm.

perry: I’m sure Rand Paul will do something to get attention in this process. But he is a “yes” vote when it comes down to it.

cwick: Let’s save Rand so that Nate can make a snarky comment about him as the kicker.

natesilver: Rand has actually voted with Trump less often than any other Republican senator.

And McConnell knows him pretty well, so when McConnell tried to steer Trump away from Kavanaugh, maybe that was the reason why.

cwick: OK, let’s make sense of the predicament that moderate Democratic senators face. It seems to me that there’s pressure on each side: They need to make sure Democratic voters show up at the polls for them (which suggests that they should vote against Kavanaugh) and that anti-Trump independents/Republicans will join an anti-Trump wave, should one exist. What do they do?

natesilver: They vote the same way they voted on Gorsuch.

clare.malone: I would say that’s correct. They won’t get rewarded by the Democratic base for voting against the nominee. They do have a risk of being dinged by independents/swayable Republican voters if they vote against the nominee.

cwick: Three Democratic senators voted “yes” on Gorsuch: Donnelly, Heitkamp and Manchin (although there are a couple of new senators since then).

clare.malone: Doug Jones of Alabama was not yet in the Senate, but he’s in basically the same boat as the others.

natesilver: Incidentally (and small sample size alert), there doesn’t seem to be any correlation between how the Democrats voted on Gorsuch and how they’re doing in the polls. Heitkamp looks quite vulnerable right now, for instance, whereas Manchin doesn’t.

clare.malone: We should note that this vote and the Gorsuch vote are different. Gorsuch was an ideological replacement for conservative Justice Antonin Scalia, while the confirmation of Kavanaugh will shift the court to the right.

natesilver: And Kavanaugh has more baggage. There are more reasons to oppose him than there were to oppose Gorsuch. But why get cute and split the difference, unless your vote would actually be decisive?

perry: As a prediction, I think the votes will be similar to what they were for Gorsuch. If I were advising Democrats in red-state races, I might suggest they vote against Kavanaugh. I think Trump is going to campaign against them anyway. I think people know they are Democrats. And I think even in West Virginia, there is a base of Democrats who you want to be actively campaigning for you and be excited about you, and that is not helped by backing Trump’s Supreme Court nominee. I don’t think there is a really strong downside to voting against. Manchin is already trying to say his vote is about protecting the Affordable Care Act, which I think is smart (as opposed to focusing on abortion).

clare.malone: Though to Perry’s point above, maybe that’s exactly the reason to vote against Kavanaugh — gin up that base since they already know you’re a Democrat in a red state.

natesilver: The other thing is that there haven’t really been a lot of viable primary challenges to Democrats in red states. The energy has all been in already-blue states and districts.

cwick: Clare, did you and Jones talk about this sorta thing when you were profiling him?

clare.malone: Yes. I think he knew that he was going to have some of these “tough votes” coming down the line that would spoil the honeymoon period. He voted for Mike Pompeo to be secretary of state and against Gina Haspel to be the CIA director, but that’s his only big/controversial nomination paper trail. I tend to think that he would vote to confirm, given the really, really slim path to victory he faces in 2020, when he’s up for re-election, given the heavily Republican lean of the state.

perry: Interesting. Jones is a case where I think it’s clear that he should vote against Kavanaugh. He needs the base to be strongly with him to have any chance in 2020, and I think if the civil rights/black communities make a clear case against Kavanaugh, as I expect they will, it will be tough for him to vote “yes.”

perry: But these politicians know their states better than I do, so I will be curious how they act. McCaskill, Donnelly and in particular Jones, for example, have sizable black communities to appeal to. Manchin and Heitkamp don’t. I will be curious if that affects these votes.

clare.malone: There are precedents for this with Bork. Bork had been against provisions of the Civil Rights Act initially, and Southern Democrats were against him, in part because they had to appeal to a broader racial coalition.

cwick: OK, I think let’s leave it there on the Democrats. Since Nate stepped on our planned Rand Paul kicker, let’s end with some probabilistic predictions: Given all that we’ve discussed, what do you think the chances are that Kavanaugh is confirmed?

clare.malone: “Good chances.”

natesilver: PredictIt says there’s about an 85 percent chance that he’ll be confirmed by Oct. 31.

perry: I would say extremely high right now. I would put him at something like 52 votes right now. (I think Donnelly and Heitkamp are pretty likely to vote “yes.” I am not as sure about Manchin.)

natesilver: I suppose I’d bet against it given almost 6:1 odds, but I wouldn’t lay down a lot of money. Nominating Supreme Court justices is one of the things that really unifies different Republican constituencies, and so far, there haven’t been any red flags for Collins/Murkowski. But their margin of error is almost nonexistent, and the confirmation hearing will likely be longer and nastier than it was for Gorsuch.

cwick: Bookies, Nate is standing by to give you not a lot of money.

Clare Malone is a former senior political writer for FiveThirtyEight.

Nate Silver founded and was the editor in chief of FiveThirtyEight.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.

Chadwick Matlin was a deputy managing editor at FiveThirtyEight.