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The 7 Senators Who Will Decide Kavanaugh’s Fate

Much of the news coverage about the Supreme Court nomination fight has focused on Christine Blasey Ford, Brett Kavanaugh, Senate Majority Leader Mitch McConnell, Deborah Ramirez and President Trump. And on Wednesday, a woman named Julie Swetnick released a three-page affidavit through her attorney, prominent Trump critic Michael Avenatti, that included a long list of explosive accusations against Kavanaugh. According to Swetnick, at parties she and Kavanaugh attended while in high school, he attempted to take off girls’ clothes, pressed girls against him without their consent, made crude sexual comments about them and secretly put alcohol in their drinks. Swetnick also said she saw Kavanaugh standing in a line with his male friends who were waiting their turn to have sex with a girl who was drunk.

The accusations made by Ford, Ramirez and now Swetnick are likely to be at the center of the discussion at a Senate hearing scheduled for Thursday, where Ford and Kavanaugh are expected to testify in detail about Ford’s accusation that the Supreme Court nominee sexually assaulted her when the two were in high school. The day after the hearing, on Friday, the Senate Judiciary Committee is scheduled to vote on Kavanaugh. And McConnell is determined to push for a floor vote with all 100 senators soon — may be on for Monday or Tuesday.

But those votes may never happen, if it becomes clear there is not enough support for Kavanaugh to be confirmed. Or they could be delayed. Kavanaugh’s fate, and how seriously his accusers comments are taken, ultimately comes down to the 100 senators. So watch for what key members say during and after Ford and Kavanaugh’s testimony — because they are the real deciders now.

Which senators are “key”? I’d suggest seven (in three groups):

  1. Three Senate Democrats, Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp and West Virginia’s Joe Manchin, voted for Trump’s first Supreme Court pick, Neil Gorsuch; have been noncommittal about Kavanaugh; and, perhaps most importantly, are up for re-election about six weeks from now in states where Trump won easily and is expected to campaign heavily for their opponents. If they vote against Kavanaugh, you can bet Trump will mention that when he stops by their states.
  2. Two Republicans, Tennessee’s Bob Corker and Arizona’s Jeff Flake, have publicly said that their party should take seriously Ford’s accusations. And crucially, both are retiring, so they can afford to oppose Kavanaugh without worrying about the backlash from conservatives.
  3. Two other Senate Republicans, Maine’s Susan Collins and Alaska’s Lisa Murkowski, occasionally vote against major GOP priorities, such as repealing Obamacare — and they too have not said whether they will back Kavanaugh.

I haven’t gone through and done a formal whip count of the other 93 senators. But there is little reason to believe that any of the 45 senators who caucus with the Democrats and voted against Gorsuch will back Kavanaugh. Gorsuch wasn’t facing sexual assault and harassment allegations. A 46th Democrat, newly elected Doug Jones of Alabama (who wasn’t in office during the Gorsuch vote), has also signaled he has reservations about Kavanaugh. Similarly, I would not expect any of the other 47 Republicans in the Senate to oppose Kavanaugh, barring some major piece of evidence emerging in the next few days that strongly supports Ford’s accusation. Kavanaugh’s appointment is a major priority for Trump and the broader Republican Party, and I don’t see any of the other 47 GOP senators blocking it at the risk of angering the party’s base.

So — if I’m right — 47 Republicans are safe bets to favor Kavanaugh, and 46 Democrats are safe bets to vote against him. He needs at least 50 votes to be confirmed, so he needs three of the seven swing senators identified above. (A 50-50 vote would put Vice President Mike Pence in position to cast a tiebreaking vote for Kavanaugh.)

Put another way, Kavanaugh can afford one GOP defection, but not two, unless some Democrats cross party lines to back him. (The Senate currently has 51 Republicans, 47 Democrats and two independents who caucus with the Democrats.)

Will any of those three Democrats — Donnelly, Heitkamp and Manchin — vote for Kavanaugh? I doubt it, but I can’t rule it out. The calculus for a Senate Democrat running for re-election in Indiana, North Dakota or West Virginia is different than one running in, say, Florida or Ohio, which are less conservative states. These senators have to be more mindful of Trump voters. Kavanaugh is fairly unpopular nationally, according to polls, but I would assume that he is at least somewhat less unpopular in those more conservative states. (We don’t have comprehensive nonpartisan state-by-state surveys of his standing.) If Kavanaugh’s performance at this hearing is particularly strong, or if Ford’s testimony does not seem credible, these three Democrats (or at least one of them) could vote for him.

But I doubt it. There are strong, partisan Democratic voters even in red states, and they’re likely to be very frustrated if their senators back Kavanaugh, who is deeply conservative on policy and facing multiple sexual assault allegations. The senators, in explaining their vote if they opt to oppose Kavanaugh, don’t have to cite policy at all, or even say that they believe the various allegations against Kavanaugh (remember, voters in these states overwhelmingly backed Trump even as he faced a myriad of sexual misconduct allegations). These senators could simply argue that the process to confirm Kavanaugh was too rushed, which didn’t give them enough time to fully assess the accusations by Ford, Swetnick and Ramirez, who says Kavanaugh thrust his penis in her face at a party both attended in college.

Also, none of these three senators are likely to back Kavanaugh if any of the Republicans break ranks. It would severely hurt his standing with his Democratic colleagues on Capitol Hill if Manchin, for example, was the 50th vote to confirm Kavanaugh, where his vote made up for, say, Flake and Murkowski opposing the nominee. And if a Republican is opposed to Kavanaugh, it’s much easier politically for a red-state Democrat to oppose the judge too and argue that he faced bipartisan resistance.

So I think we should be really, really watching Collins, Corker, Flake and Murkowski. The public comments of Collins and Corker in particular suggest that they would like to find a way to vote “yes” and stand with their party. Collins and Murkowski are not retiring, so they have to worry about being challenged in a Republican primary. And I’m not sure they can survive politically after killing a second one of the party’s top priorities. Corker and Flake are ideologically conservative — I doubt they disagree with many of Kavanaugh’s previous rulings or his broader judicial views. So these four are, I assume, inclined to back Kavanaugh, but I don’t think it’s worth trying to predict their votes. There is a lot of uncertainty in this confirmation process.

One final thought: After Thursday’s hearing, I’m sure there will be lots of coverage of what Trump says and tweets about what Ford and Kavanaugh said. I would ignore that coverage. In this case, Trump doesn’t really matter — unless he says Kavanaugh should withdraw, which I think is highly unlikely. It’s really all about these seven senators.

FiveThirtyEight House forecast update for Sept. 26, 2018

Perry Bacon Jr. was a senior writer for FiveThirtyEight.