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Judy Ford Wason Center for Public Policy

Wason Center

September 30, 2018

For Swing State Senators Facing Reelection, the Kavanaugh Confirmation Process is Dark and Full of Terrors

Issue / Elections / National / Midterm

Feinstein and Kavanaugh split screen from CSPAN

Once filled, the current vacancy on the Supreme Court will push the Court towards conservatives for at least a decade and may redefine how issues like abortion access are treated by federal courts. Add into the mix a nominee with expansive views of executive power appointed by a president entangled in a criminal conspiracy larger than Watergate, and you have the most controversial confirmation process conducted by the Senate in the polarized era.

Yet, the context of Kavanaugh’s nomination to the Supreme Court became even more heated when rumors of an alleged sexual assault committed more than three decades turned Kavanaugh’s all-but-certain confirmation on its head.  After a week of tense negotiations and additional allegations, Kavanaugh’s accuser, Dr. Christine Blasey Ford appeared before the Senate judiciary committee. She stated that she was 100% certain that Judge Kavanaugh was the man that assaulted her when they were both attending high school in the Metro D.C. area. However, Judge Kavanaugh vehemently denied the allegations and asserted that Ford’s accusations were politically motivated, meant to derail his nomination for partisan gain. Initially refusing to investigate the matter further, retiring Senator Jeff Flake (R-AZ) forced Republicans to approve a week-long FBI background review of the allegations before agreeing to support the nominee.

Both President Trump and Judge Kavanaugh have blamed the Democrats for bringing politics into the hearing. President Trump tweeted, “Democrats’ search and destroy strategy is disgraceful and this process has been a total sham and effort to delay, obstruct, and resist.” Earlier in his confirmation hearings, Kavanaugh took a stance against politics in the judiciary and “stressed the ideal of an apolitical judge.” However, after the allegations made by Dr. Ford, Kavanaugh stated that the accusations were a “calculated and orchestrated political hit” fueled by angry Democrats that want revenge for Clinton in the 2016 presidential election.

With this controversial Supreme Court confirmation happening so close to the midterm elections, it is likely that the hearings will have an impact on the opinions of voters. According to an Economist/YouGov poll, 52% of respondents have heard a lot about the Kavanaugh hearings whereas 28% of respondents have heard a little about the hearings. Only 21% of respondents claim that they have heard nothing at all about the hearings, meaning the controversy surrounding the hearings are likely to impact voting choice.

Several Republicans and Democrats running in the midterm elections have had to shift their campaign message to respond to the Kavanaugh hearings. A Republican strategist working on the midterm elections said that in several states, “the conversation instead is about the Mueller (probe) and other complications at the White House and now this. That’s taking all the attention away from the economy.” “If on Nov. 7 we woke up and the Democrats took the majority, what you watched last week would be intensified for the next two years,” said House Majority Leader Kevin McCarthy. He argued that Democratic control of the House would ensure investigations that have been held back by the Republican majority. President Trump questioned Ford’s the veracity of Ford’s allegations and her character via Twitter, which is “not the message Republicans wanted to project,” according to GOP strategists. Later, President Trump walked back his twitter comments, calling her a “nice lady” and stating that her testimony was “compelling” before going on to say that he believes Judge Kavanaugh to be innocent. After the delay on the confirmation vote was announced, President Trump used the delay as a political tactic to rally Republican voters. He spoke at a rally in West Virginia, a state where the race between Democratic candidate Joe Manchin and Republican candidate Patrick Morrisey has been labeled as a toss-up. He stated that the delay shows why Republican voters need to take a stand against “mean and nasty and untruthful” Democrats in the midterm elections.

The hearings have worked in favor of the Democratic message to provide more of a check on the embattled president. The Blue Wave is likely to produce a surge in Democratic Party voters. However, the controversy surrounding the hearings also poses a challenge to some Democratic senators running for re-election. Ten incumbent Democrats must run for reelection in states that voted for Trump in the 2016 election. A vote for a Trump nominee might have been an effective way to show their constituents that they can vote across party lines. However, doing so may put them in peril, and that was before the current scandal. Given that Republicans control both the Senate and the White House, Trump has picked a robustly conservative justice to replace the less conservative Justice Kennedy. A vote to confirm this justice may well be the vote that enables Republicans to achieve long-sought policy objectives such as a repeal of “Roe v. Wade.” As such, these red-state Democrats, along with a few Republican moderates, have been under immense pressure to vote against Kavanaugh. And that was before the scandal that has prompted both an additional Senate hearing as well as an FBI probe.

After Kavanaugh’s testimony, several key Democrats have voiced their anger regarding the Kavanaugh’s tone and temperament. Guy Cecil, who runs the Democrat’s largest Super PAC, Priorities USA, tweeted that he will “never personally or professionally support any Democrat who votes to confirm Kavanaugh”. Cecil’s declaration could have large impacts on Democratic Sen. Joe Manchin of West Virginia and Sen. Heidi Heitkamp who receive support from Priorities USA and have yet to make a decision on Kavanaugh’s confirmation. Other Trump state Democrats have already announced they will vote “no” on Kavanaugh including Doug Jones, Tammy Duckworth, Debbie Stabenow, Tammy Baldwin, John Tester, Claire McCaskill, Bill Nelson, and Joe Donnelly. Nelson, McCaskill, and Tester have made the calculus that definitely isolating Democrats with a “yes” vote is far more dangerous than maybe isolating some Independents.

A recent poll conducted by Change Research finds that 51% of respondents are less likely to re-elect their Senators after the Kavanaugh hearings. This is likely to have a visible impact on Republican Senators that are fighting for their seat against the Blue Wave. Furthermore, the poll found that 50% of respondents will view the Supreme Court as less credible if the Senate confirms Kavanaugh, which will surely have an impact on American political efficacy.  If the American public finds the Supreme Court less credible, there is likely to be even more partisan divide over issues that are already widely debated among Democrat and Republican voters. The favorability of Judge Kavanaugh differs greatly between Republicans and Democrats. 47% of Republicans have a very favorable opinion of Kavanaugh whereas only 3% of Democrats find him very favorable. Furthermore, 54% of Democrats find him very unfavorable whereas only 7% of Republicans find him very unfavorable.

Due to support for Kavanaugh among Republican senators, the GOP risks losing more women supporters than they were already predicting. Furthermore, after Anita Hill’s testimony against former Justice Clarence Thomas in 1991, there was a “year of the woman” result with five women U.S. Senators winning midterm elections. According to the Economist/YouGov poll, there is a great divide between males and females regarding the favorability of Kavanaugh. Only 14% of females find Kavanaugh very favorable whereas 25% of males find Kavanaugh very favorable. Significantly, 36% of females are unsure of how favorable they find Kavanaugh. Regardless, women are likely to have a great impact on the midterm elections due to President Trump’s favorability ratings among women and now due to the intensity women feel surrounding Dr. Ford’s testimony. Neera Tanden, the president of the Center for American Progress, states that women are not “angry, they are furious” and she expects the “largest women’s turnout in a midterm — ever.”

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