We’re one day into the Brett Kavanaugh Wars, and the process is already exhausted. Most senators pre-emptively sorted into their partisan camps with little sign they’re susceptible to persuasion. If the nomination process is going to last for months, they will be tedious months, and there’s little chance that it will conclude with good news for Democrats.
With an effective 50 to 49 majority—Arizona Sen. John McCain is out indefinitely—Democrats would need just one Republican to flip in order to sink the nomination, if they can keep their own caucus unanimous in opposition. I could not identify that Republican, or any Republican even toying with the idea of being that Republican, on Tuesday. Senate Republicans were nearly all enthusiastic about Kavanaugh and eager to make fun Democrats for spinning their wheels trying to develop silver bullets to kill Kavanaugh’s nomination.
Louisiana Sen. John Kennedy, a Judiciary Committee member who told reporters on Monday evening that he wouldn’t be a “rubber stamp” for the president’s pick, said Tuesday that if it were up to him he would start confirmation hearings “next week,” and called all Democratic accusations against Kavanaugh “ridiculous.” The thing Kennedy wants to know, from his powerful perch as one who gets to publicly question Kavanaugh, is whether “he had a crummy first job.”
“I’d feel better if he spent an August on a hot roof laying plywood,” Kennedy told reporters.
Arizona Sen. Jeff Flake, whom many seem to forget is a staunch conservative when he’s not criticizing the president’s tone, also loves Kavanaugh, regardless of whether he spent formative teenage summers on hot roofs. Nor is he swayed by any of the tranches of criticism Democrats are currently road-testing on Kavanaugh. Policy arguments, like how Kavanaugh might unravel Obamacare or further restrict access to abortion, won’t dissuade Flake. But Kavanaugh is also facing criticism for a 2009 law review article in which he argued that Congress should enact a law shielding presidents from a “time-consuming and distracting” criminal or civil prosecution while in office. (Kavanaugh admits that this was not his opinion in the 1990s, when he investigated the Clinton administration as part of the Kenneth Starr probe.)
If that argument was going to persuade any Republican, it would likely be Flake, who said in May that the presidency has been “debased” by a president who has “only a passing familiarity with how the Constitution works.”
So, how bothered is Flake by Kavanaugh’s belief in just leaving presidents alone?
“Frankly that was back when Obama was president, so if somebody’s trying to draw a line between him being easy on Trump, that’s not there,” Flake said. “He’s a strong pick.” Kennedy, on the same topic, told reporters that it’s not “fair to criticize a thinking person for thinking.”
“I mean, I don’t want somebody who’s never had an original thought in his life,” he said.
What about Maine Sen. Susan Collins? The occasional Republican swing vote has been entertaining the largest swarms of reporters on the Senate subway platform since the height of the health care debate last summer. While she insists that she’s still working through her position, and wants to meet with Kavanaugh to get a better sense of his “judicial philosophy,” she didn’t express any concerns at all about him on Tuesday.
Collins noted that she voted for both Justices Sonia Sotomayor and Elena Kagan, “even though I don’t share the same political philosophy with them, but I found them well-qualified to serve on the court,” and said that she made a “similar” decision with Justices John Roberts and Neil Gorsuch. If being viewed in Collins’ eyes as “well-qualified to serve on the court” is the key to her vote, then, Kavanaugh’s in good shape.
“When you look at the credentials that Judge Kavanaugh brings to the job, it’ll be very difficult for anyone to argue that he’s not qualified for the job,” Collins said.
Collins also swatted away Democrats’ charge that Kavanaugh would unravel protections in the Affordable Care Act. She noted that in one case on the ACA that Kavanaugh adjudicated, he was “criticized by conservatives as not going far enough.” She also took a subtle swipe at Democrats’ recent emphasis on the effect Kavanaugh would have on health care, which has been the party’s strongest and most unifying issue ahead of the midterms.
“I’ve noticed that they seem to have switched from a focus on Roe to health care in an attempt, I assume, to unify their caucus,” she said.
Senate Democratic leader Chuck Schumer denied in his weekly press conference that Democrats had made such a calculation, and said that they were focusing on all sorts of issues. This came after he said in his opening remarks that a Justice Kavanaugh would be the “dagger through the heart” of Americans’ health care protections, and that health care was “at the top of the list” of their concerns. He did, however, also cite the two other main lines of attack in this nascent three-pronged focus: Roe and Kavanaugh’s views on criminal investigations against a president.
Most Senate Democrats have already signaled their opposition. Even ones that are occasionally squishy, like Pennsylvania Sen. Bob Casey and Virginia Sen. Mark Warner, have said that any selection from President Trump’s list of potential nominees isn’t what they’re looking for. Delaware Sen. Tom Carper, one of the few Democrats who voted to confirm Kavanaugh to the D.C. Circuit in 2006, said Monday that Kavanaugh’s record since then has concerned him. It doesn’t appear that there will be many question marks about the vote count in the Judiciary Committee, either, considering that all Democrats on the committee spoke outside the Supreme Court on Tuesday morning about how lousy Kavanaugh is.
Theoretically, all eyes are on a handful of Senate Democrats up for re-election in states that Trump won: West Virginia Sen. Joe Manchin, Indiana Sen. Claire McCaskill, North Dakota Sen. Heidi Heitkamp, Florida Sen. Bill Nelson, and Montana Sen. Jon Tester. All of them claim that they’re reviewing the nomination and gathering information.
Are they, though? The only information they really need to gather is whether Collins or some other Republican will defect. The other likely candidate, Alaska Sen. Lisa Murkowski, was coy with reporters on Tuesday and went on at length about it being the time for senators to do the “hard work” of vetting. If Democrats do get a defection, they’ll have Republican cover to kill the nomination on the unifying argument that they’re protecting pre-existing conditions. If the confirmation ends up being secured solely with Republican votes, then some red-state Democrats can add to the total to show off how bipartisan they are.
What would it take for the Kavanaugh nomination to be stopped? An extinction-level asteroid collision might do the trick. Barring that, some new piece of highly scandalous information would have to emerge and shift the conversation from where it is right now: predictable squabbling along partisan lines, where one side has one more vote than the other.