Democrats are getting way too clever about stopping Brett Kavanaugh

Don't fear voting against a duplicitous, anti-abortion Supreme Court nominee

Brett Kavanaugh.
(Image credit: Illustrated | kostenkodesign/iStock, AP Photo/Jose Luis Magana)

President Trump's nomination of Brett Kavanaugh to the Supreme Court is running into some stiff headwinds. Republicans hold their Senate majority by only one vote, and since Sen. John McCain (R-Ariz.) will likely be too ill to participate, they will either have to muster their entire caucus or peel off enough Democrats to replace any defections. Now new information is coming to light calling Kavanaugh's honesty into severe question.

It's an open question whether Democrats will be able to stop the nomination. But it's certainly not impossible, if they take a more aggressive approach.

The Republican strategy is clearly just to jam Kavanaugh through as quick as they can. They are dragging out the disclosure of his files from his long career as a Republican political operative, promising anything to moderates, and trying to keep questioning to a minimum.

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Nevertheless enough has come out to give a clear picture of what sort of person Kavanaugh is: a duplicitous partisan hack. For instance, during his confirmation hearings to become an appellate court judge in 2006, he testified that he had little to do with the nomination process of Judge Charles W. Pickering, Sr. — which was controversial due to Pickering having advocated for reducing the sentence of a man who was convicted for burning a cross in front of the house of an interracial couple. But as Charlie Savage reports at The New York Times, emails show Kavanaugh was deeply involved in the nomination, compiling information binders, drafting a letter to a senator, drafting an op-ed to be published under the name of then-White House Counsel Alberto Gonzales, and facilitating other activities.

Kavanaugh was also a key staffer in the Kenneth Starr prosecution of President Bill Clinton. The Washington Post recently published a memo he wrote at the time heatedly demanding Clinton be asked a slew of explicit sexual questions unless he resigned or admitted to committing perjury. But as Josh Marshall notes, in an interview less than six months later he questioned the U.S. v. Nixon decision (which forced that president to obey a federal subpoena to turn over his Oval Office tapes) on the grounds that it infringed executive authority. In 2009 he wrote an article arguing that Congress should pass a law exempting sitting presidents from civil suits, criminal prosecutions, and investigations.

Finally, Kavanaugh is clearly virulently anti-abortion. In a speech last year, Kavanaugh praised then-Associate Justice William Rehnquist's dissent in Roe v. Wade and his rejection of the separation of church and state (as well as his efforts to allow cops to use illegally-obtained evidence).

On the Democratic side, their counter-strategy is outlined well in these two articles from Politico. Led by Senate Minority Leader Chuck Schumer, they are hitting the abortion issue hard and pressing moderate Republican Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). Meanwhile, Schumer is pressing his moderates (most of whom voted for Trump's previous Supreme Court pick Neil Gorsuch) to remain uncommitted, so as to avoid damaging commitments, while he tries to peel off a Republican or two. Moderate Democrats probably won't want to be the deciding vote, and so might break against the nomination if Collins or Murkowski bolts.

Collins especially is vulnerable, with a new poll finding Maine residents oppose voting for Kavanaugh by 49-42, with 47 percent saying a vote for him would make them less likely to vote for her re-election compared to 31 percent making it more likely. Naturally, on Tuesday, Kavanaugh assured Collins that Roe v. Wade was "settled law," a near-meaningless idea that, even if he really believes it, still allows wide latitude to whittle away abortion rights to the nub.

However, the tactical assumptions of Schumer and moderate Democrats are questionable. First of all, the Kavanaugh nomination is incredibly unpopular, gaining only 37 percent support — the worst since Robert Bork in 1987. Trump's approval rating in states he won with undecided senators up for re-election in 2018 isn't much better, ranging from +8 in Missouri to +4 in Montana (except for West Virginia, where he is up by 30). Meanwhile, Republican opinion on banning abortion is far out of the mainstream. Sixty-nine percent of Americans support Roe v. Wade, and support for banning abortion outright barely tops 20 percent even in West Virginia. Even Sen. Joe Manchin (D-W.Va.) has little to lose by moving to protect abortion rights.

Furthermore, promises from conservative dark money groups to refrain from attacking vulnerable Democratic senators if they vote to confirm — or threats to keep doing so should they vote against him — are clearly meaningless. Every one of these senators is going to face an absolute tsunami of reactionary money and unhinged agitprop, full stop. It's going to be a fight to the death no matter what they do.

On the other hand, these senators will badly need the support of progressive activists and small-dollar donors. Coming out against Kavanaugh will go a considerable distance towards demonstrating they aren't just Republican-lite sellouts. And if they abandon Schumer's catch-and-release strategy and come out against Kavanaugh with a united front, that will increase pressure on Collins and Murkowski to not be the deciding vote. But on their own, I certainly would not trust those two not to defect at the last second.

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Ryan Cooper

Ryan Cooper is a national correspondent at His work has appeared in the Washington Monthly, The New Republic, and the Washington Post.