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What The Bork And Thomas Confirmation Fights Tell Us About Kavanaugh

The process of confirming Judge Brett Kavanaugh to the Supreme Court promises to be a Senate classic — grandstanding and softball questions galore. Some of those senators will likely also feel the process’s effects in the midterm elections, at least according to popular political wisdom. Democrats in red states will have to navigate the realities of electoral politics: How will voters react if their senators go against President Trump’s conservative nominee? Will they be punished for a vote against the president?

That’s a tough question to answer statistically (selection bias and all that fun stuff), and we’re not quite ready to weigh in with a definitive analysis. But it got us thinking about whether there was a historical comparison to make. Had senators been faced with such high stakes when it came to a Supreme Court nominee before? (A $1.4 million ad buy in support of Trump’s nominee has already been made focusing on the Alabama, West Virginia, North Dakota and Indiana media markets, where Democratic senators face tough re-election battles in the midterms and 2020.)

I spoke with Kevin McMahon, a professor and Supreme Court expert at Trinity College, who recalled an interesting historical tidbit I thought was worth sharing. He said that more liberal Democrats, at least at one point in time, were successful in pressuring moderate senators to vote against the president’s nominee: Robert Bork, who was nominated by President Ronald Reagan but who the Senate refused to confirm.

“You can look at Bork in ’87 and there is some evidence to support the fact that southern Democrats who were re-elected on biracial coalitions felt they couldn’t support somebody like Robert Bork, who had originally said that the 1964 Civil Rights Act was unconstitutional,” McMahon said.

Democrat Lloyd Bentsen of Texas told The New York Times that civil rights were on his mind during the Bork’s confirmation battle. “My deep concern is that you could turn back the clock on civil rights,” he said. “We’ve already fought those fights, and we’re happy with the outcome.” Another contemporaneous Times report talked of sustained lobbying of Southern Democratic senators by their black constituencies. It specifically focused on four senators from North Carolina, Alabama and Louisiana, swing votes who “were all elected with more than 75 percent of the black vote, according to polls of people leaving the polling place in 1984 and 1986.”

But in 1991, when Clarence Thomas’s confirmation process turned into a protracted battle after he was accused of sexual harassment, conservative Democrats didn’t feel the same pressure in part because Southern black voters generally approved of Thomas. Eight Democratic senators who were up for re-election1 in states that were Republican-leaning2 heading into the 1992 election voted against Thomas, but most won their elections by the comfortable margins associated with incumbency. The only one to lose was Terry Sanford of North Carolina. A 1991 New York Times account foreshadowed this loss, but noted that Sanford already faced electoral problems stemming from his unpopular vote against sending American troops into Kuwait after it was invaded by Iraq.

These days, things are different. In general, conservative-leaning voters tend to be more motivated by Supreme Court nominations than Democratic voters are. Exit polls from the 2016 presidential election showed that 21 percent of voters said that Supreme Court appointments were “the most important factor” in their presidential vote, and 56 percent of them voted for Trump. The 14 percent of voters who said high court appointments weren’t a factor in their vote at all swung for Hillary Clinton (55 percent). This dynamic helps explain the predicament red-state Democrats face: Vote against Kavanaugh and conservative voters might be more likely to punish them, but there’s no indication that their Democratic base will reward them to make up for it.

Additional reporting by Nathaniel Rakich.

Footnotes

  1. Counting only senators who actually ran that year, that is, not any senators who retired or died.

  2. According to FiveThirtyEight’s partisan lean metric, which is the average difference between how a state or district voted in the last two presidential elections and how the country voted overall, with 1988 results weighted 75 percent and 1984 results weighted 25 percent.

Clare Malone is a senior political writer for FiveThirtyEight.

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