Oct. 06

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Kavanaugh Nomination Advances to a Vote

On a procedural vote taken yesterday, the nomination of Brett Kavanaugh to the Supreme Court went forward, allowing a vote this weekend. The vote was 51 to 49, almost along party lines. All but one Republican voted "yes" and all but one Democrat voted "no." Sen. Lisa Murkowski (R-AK) was the sole Republican "nay" and Sen. Joe Manchin (D-WV) was the sole Democratic "yea."

Two other Republicans who had dithered in public, Sens. Jeff Flake (AZ) and Susan Collins (ME), voted the party line, as Senate Majority Leader Mitch McConnell (R-KY) can always count on them to do. Friday's vote was not about confirming Kavanaugh, though, it was simply a cloture vote to end debate and move on to the actual vote in a day or two. A senator could vote differently on the actual confirmation vote. It is not unheard of for a senator to say: "I think we have debated enough and now it is time to vote, so I am 'yes' on cloture but 'no' on the bill/candidate/etc." Still, if ever a vote for cloture was predictive of the final vote, this one was it, since every senator has already publicly announced their vote for the next (and final) vote.

This was a tough vote for several senators. Flake has criticized Kavanaugh, but since he has no future in politics (something he may not realize), he could have voted "no" and there is nothing anyone could have done to punish him. Susan Collins is in a real bind. She made a long speech on the Senate floor and ended with: "I will vote to confirm Kavanaugh." It could also be the end of her career in 2020. Maine is a blue state and Maine Democrats will never forgive her, since she could have torpedoed the nomination and didn't. A pair of activist groups have already raised almost $4 million for her 2020 opponent, whoever that person might be. By way of comparison, Collins' last Senate campaign cost a grand total of $5.5 million. Given that pot of money, not to mention the fact that Collins just became 2020's most vulnerable Republican, numerous Maine Democrats are undoubtedly going to consider a Senate run. Rep. Chellie Pingree (D-ME) is probably the front runner already, simply because she already represents the southern part of the state in the House. Other possibilities include Obama administration official Susan Rice and Cecile Richards, who recently left her position as president of Planned Parenthood. Both of them own houses in Maine, and both signaled interest in a possible run on Friday. In the past, Collins acted like a moderate and got plenty of Democrats to vote for her. She now has an enormous target on her back.

Murkowski did the Hamlet thing in public, but she actually voted "no" on Friday and is almost certainly a "no" vote for confirmation. It is rare that the two women (Murkowski and Collins) split, but they did this time. Murkowski's future is far from clear. She's not up until 2022, which gives Alaskan Republicans more time to forget her vote. Also, 2022 is not a presidential year, so turnout will be lower, which generally helps Republicans. If Kavanaugh is ultimately confirmed, which seems very likely now, Majority Leader Mitch McConnell (R-KY) will ultimately forgive her since her vote didn't matter. If somehow Kavanaugh goes down, it's not going to be pretty for Murkowski.

It is possible that the vote will be delayed until Sunday because Sen. Steve Daines (R-MT) is going to be in Montana on Saturday to attend his daughter's wedding. Rep. Greg Gianforte (R-MT) offered Daines use of his private plane to get him back to D.C., but the Senator probably won't make it on Saturday. That said, the delay would happen only if one of other 50 "yea" votes wavers. Otherwise, Lisa Murkowski said she would vote "present" in order to allow Daines to enjoy his daughter's wedding and to not worry about having to rush back. Unlike, say, Sen. Ben Cardin (D-MD), she understands the difficulties of representing a state far from D.C. That means that, assuming everything goes as expected, Kavanaugh will be approved with 50 "yea" votes against 48 "nays," with one abstention.

As to November, several endangered Democrats in Trumpist states could take a hit here, in particular, Sens. Heidi Heitkamp (ND), Joe Donnelly (IN), and Claire McCaskill (MO). How much that will hurt remains to be seen. With his vote for Kavanaugh, Manchin is probably safe now. Nevertheless, Democrats nationwide are going to be furious for the next 4 weeks and this could be the October surprise that puts many of the Democratic candidates in tough races over the top. Republicans got what they wanted, so they are going to be happy. In politics, angry beats happy almost all the time.

A vote this weekend may not be the end of the story. If the Democrats win the House, the House Judiciary Committee could start an investigation to see if Kavanaugh lied under oath. Remember that Bill Clinton was impeached for lying under oath, so if it turns out there are half a dozen witnesses who can testify that "the devil's triangle" is not about drinking three glasses of beer and boofing is not about flatulence, then Kavanaugh could be impeached for perjury. The chance that the Senate would convict him is zero, but it would be embarrassing for him to be the first Supreme Court Justice impeached in 200 years. (V)

Trump Jr. Slams Manchin

It is exceedingly unlikely that any senator will be changing their vote on Brett Kavanaugh at this point, although Donald Trump Jr. is certainly giving it the old college try. On Friday, he sent this tweet out:

A real profile in courage from Lyin’ liberal @JoeManchinWV. Waited until Kavanugh had enough votes secured before he announced his support. I bet he had another press release ready to go if Collins went the other way.

West Virginia - Vote for #MAGA champion @MorriseyWV! #WVSEN https://t.co/WDAzKcb3Io

— Donald Trump Jr. (@DonaldJTrumpJr) October 5, 2018

Manchin is unlikely to respond to such provocations, but someone might want to advise young Trump about counting your chickens before the eggs hatch. It also seems fair to say that only a member of the Trump family would publicly lambaste someone who takes their side. Meanwhile, three years into his father's political career, Don Jr. appears to be realizing that sometimes the decisions made by politicians are...political. Can't get anything past him, of course. (Z)

Brett Kavanaugh in Historical Perspective, Part I

As chance would have it, two of the Supreme Court's three female justices were scheduled to participate in a round table at Princeton on Friday. And during that event, Elena Kagan and Sonia Sotomayor did not directly address recent developments (in other words, they did not use Brett Kavanaugh's name), but they did say they are worried that the Court is at risk of losing its legitimacy due to being politicized, and that it may soon enter an era where there is no swing vote.

By using the future tense, as well as frequent qualifiers like "maybe" and "could," Kagan and Sotomayor were being optimistic. However, that ship has already sailed. Soon-to-be-Justice Kavanaugh may find his way onto the Court by the slimmest of margins, but his career (no matter how many decades it may last) has been permanently compromised. There are at least three distinct problems, none of them likely to be forgotten:

Note that this is not an exhaustive list; Kavanaugh's goal of being perceived as a fair and impartial justice is also not going to be helped by his work for the Bush administration, or the 100,000 pages of documents that were not made available by the Trump administration, or the possibility he perjured himself before the whole sexual assault chapter even began. But the three things above are the ones most likely to stick in critics' heads. And these are best-case scenarios. Heaven help Kavanaugh if the Democrats take the House and Judiciary Committee Chairman Jerrold Nadler (D-NY) begins public hearings on his possible impeachment, interviewing everyone who knew him in high school and college.

But does this matter? CNN's Chris Cillizza, whose analysis is usually pretty solid, thinks they will not. He writes, "There are no asterisks next to the names of the members of the Supreme Court. Whether you got there on a unanimous Senate vote or barely survived, your vote still counts the same." It is our view that, in this case, Cillizza couldn't be more wrong. As we have pointed out a couple of times recently, and as a very large number of commentators have written this week, the Supreme Court is very dependent on people buying in to the notion that they are fair and impartial and that, more importantly, their rulings matter. The Court commands no troops and has no police force (other than a small cadre of security guards). Its powers also largely have no Constitutional basis. Those powers have either been awarded over the years by the legislature or, more commonly, simply assumed by the Court (as is the case, most famously, with judicial review).

The upshot is that there are a great many cases in U.S. history where the Court's rulings were simply ignored. The two most famous instances are probably these:

There are two lessons to be drawn here. The first is that the perception that the Court does not represent the will of the people gives politicians cover to ignore its rulings. In the case of the Marshall Court, Jackson argued (with some justification) that the Chief Justice and his fellow justices were expressing the will of a minority party (the all-but-dead Federalists), and that the people were thus not bound by their rulings. Similarly, Southern governors argued (with a little less justification) that the leftward tilt of the Court under Warren had left it out of step with the people, which gave the South justification to do their own thing. It should be pretty clear where we are headed here: There's a pretty good argument that the current Court represents a minority party who gained control only through a series of dubious activities, from the possible shadiness surrounding Donald Trump's election, to all the machinations that will (presumably) get Brett Kavanaugh seated. Whether this argument is fair or not, it's strong enough that Democratic presidents and governors will have a lot of cover to push back against the Court, if they wish to do so.

The second lesson from the two cases above is this: Controversial Court decisions can be very hard to implement. In the case of Brown (and other anti-integration rulings), it took three presidents (two of them Democratic), as well as a Democratic-controlled Congress, 14 years of vigorous effort to make things happen. And in the case of Jackson and the Natives, with a President who was not interested in heeding the Court, and who had the support of Congress (which passed the Indian Removal Act in 1830), well...how many Cherokees are there in Florida today? Similarly, how many people were re-enslaved due to Scott v. Sandford, or how many folks without a writ of habeas corpus were freed after Ex Parte Merryman?

The point here is that if the newly-constituted Court issues rulings that blue states do not like, it is safe to assume the blue states will tell the Court to shove it. Imagine, for example, that the Court issues some sort of ruling designed to punish so-called sanctuary cities. Is it really likely that California or New York will suddenly start rounding people up and deporting them? Or giving lists of undocumented immigrants to the government? Any Democratic politician who participated in such things would be voted out of office at the next available opportunity, Supreme Court ruling or not. Similarly, imagine that the next Democratic president decides to extend Medicare to more people, and the Court says "nope." What can the Court do if that president (assuming he or she is supported by a Democratic-controlled Congress) says "Roberts has his ruling, now let him enforce it!"?

The fly in the ointment, at least from the liberal point of view, is that the Court's decisions can and will serve to legitimize certain choices that red states might make, like restricting/outlawing abortion, or making it difficult for non-Republicans to vote, or making gerrymandering easier. That's a tougher nut to crack, but it's worth noting that for the last 10-20 years, if not longer, the GOP has (metaphorically) been fighting with submachine guns while the Democrats fight with slingshots. You could pick 100 Americans at random, and ask them "which Party is more lacking in backbone?" and surely at least 95% of them would say "The Democrats," regardless of their political affiliation. But it is possible that, in response to the abuses of the Trump administration, and the baldfaced manipulation of the Supreme Court's membership, that might actually change. There are lots of issues where, frankly, the blue team has essentially been waiting for the Court to solve their problems rather than taking the bull by the horns themselves. For example, some sort of legislative action designed to curtail gerrymandering is possible, and might even find bipartisan support (after all, California embraced reform in this area, despite the fact that the state's Democrats were voting to reduce their own power). Similarly, the Supreme Court did not overturn the entire Voting Rights Act of 1965, just the formula used to determine which states were or were not in compliance. The blue team could take a crack at a new Voting Rights Act, or even at a law that protects abortion rights nationwide.

If the events of the last few years somehow inaugurate an era of reform and of liberal activism, it wouldn't be the first time that happened following a period of Republican rule (and domination of the Supreme Court), as well as perceived corruption on the part of those in power. In fact, the Progressive movement and the New Deal both came out of circumstances very much like those. So while the likely seating of Brett Kavanaugh is certainly a short-term win for the Trump administration and the GOP, it remains to be seen if it proves to be a long-term win, as well.

Meanwhile, tune in tomorrow for Part II, which will look at other controversial Supreme Court justices. (Z)

No Nobel for Trump

It is not even clear that Donald Trump got any legitimate nominations for this year's Nobel Peace Prize. While he has already been properly nominated for 2019, the publicly-known nominations for 2018 all proved to be fraudulent. In any event, the committee clearly was not interested in recognizing recent developments in Korea this year, as they went in a different direction entirely.

This year's winners are Nadia Murad and Denis Mukwege. The former is an Iraqi Yazidi and an activist who has fought back against the sexual violence perpetrated in the Middle East, particularly by ISIS. The latter is a Congolese gynecologist who has treated over 30,000 rape victims, most of them raped at the hands of soldiers. The Nobel committee's announcement says that the duo are being honored for their shared efforts to "end the use of sexual violence as a weapon of war." Some commentators are interpreting the selection as, in some small measure, a poke in the eye of Donald Trump, although the sexual violence that Murad and Mukwege fight against is much more serious than pu**y grabbing. In any case, the space that the President cleared on his mantle will remain empty for at least one more year. (Z)

Charlie Cook Changes Gubernatorial Ratings in Four Races

As we have pointed out before, the Democrats have a dreadful Senate map but a wonderful gubernatorial map. In the Senate, the Democrats have 26 seats at risk. In the gubernatorial races, it is Republicans who have 26 seats at risk (some of which are open). Even in red states, Democrats have a decent shot at winning the governor's mansion. Here are election guru Charlie Cook's ratings changes:

State Democrat Republican Old rating New rating
Illinois J.B. Pritzker Bruce Rauner Leans Democratic Likely Democratic
Minnesota Tim Walz Jeff Johnson Leans Democratic Likely Democratic
Oklahoma Drew Edmondson Kevin Still Likely Republican Leans Republican
South Dakota Billie Sutton Kristi Noem Likely Republican Toss up


What is even more amazing is that Cook now has Florida, Georgia, Iowa, Kansas, Maine, Nevada, Ohio, South Dakota, and Wisconsin as toss-ups. Gov. Bruce Rauner (R-IL) is dead meat and Democrats are almost sure to pick up Michigan and New Mexico and likely to hang onto all their own states except possibly Connecticut. In a blue wave, Democrats could flip at least half of the 26 Republican seats and lose nothing, giving them the power to block gerrymanders in many states after the 2020 census. (V)


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