Kavanaugh Has a Strong Chance of Confirmation—and of Becoming an Election Rallying Cry

The Supreme Court nominee has become a symbol of the president’s quiet judicial legacy and the anti-Trump resistance.

The Supreme Court nominee Brett Kavanaugh with Senator Susan Collins of Maine, a Republican who has been considered a potential swing vote in Kavanaugh's confirmation (Alex Wroblewski / Reuters)

This week is Brett Kavanaugh’s audition for Supreme Court justice. The Senate Judiciary Committee will hold hearings starting on Tuesday, likely focusing on Kavanaugh’s time as a White House counsel during the George W. Bush administration and his record as a federal appellate-court judge. Barring some explosive revelation, Kavanaugh has strong odds of winning the 51 Senate votes he needs to be confirmed. A half-dozen or more Democrats are looking ahead to vicious reelection races in states that went for President Trump, and several key, moderate Republicans have already suggested that they plan to support the judge.

If Kavanaugh is confirmed, his decisions from the Supreme Court bench could shape legal standards on executive power, religious freedom, affirmative action, privacy, and more for decades to come. But the hearings themselves may be most important for how they are used to persuade voters ahead of the midterm elections.

Kavanaugh’s nomination is still controversial because of his past political work and the ongoing investigations into the Trump administration. With just three or four planned days of hearings and more than 440,000 public pages of records to base their questions on, Democrats are likely to try and get as much embarrassing and damaging information out of Kavanaugh as possible.

[Conservatives are scared, even under Trump.]

Over the past two months since Kavanaugh’s nomination was announced, Democrats and Republicans have painted him in radically different ways. The judge’s backers have called him “a fair arbiter of the law who will call balls and strikes,” to use the words of Senator John Cornyn of Texas; one Washington Post op-ed vouched for his character as a “carpool dad.” Conservatives have downplayed liberals’ arguments that Kavanaugh would radically remake the federal legal landscape: Leonard Leo, who helped secure Kavanaugh’s nomination through his work at the Federalist Society, said Democrats are using a “scare tactic” when they predict that Kavanaugh would help overturn the constitutional right to abortion established in Roe v. Wade.

By contrast, liberals and progressives have characterized Kavanaugh as a “conservative ideologue,” in the words of Senator Kamala Harris, who would make decisions in a partisan way. (Senator Mazie Hirono of Hawaii claimed Trump chose Kavanaugh to shield himself from potential criminal charges related to collusion or corruption—“to protect … his own okole,” she said, euphemistically.) Some activists have taken to using apocalyptic language about his nomination: Ilyse Hogue, the president of the abortion-rights organization NARAL, recently wrote that Kavanaugh’s confirmation would let “hate-filled, regressive policies ... be preserved for generations to come, destroying the Founding Fathers’ vision of freedom and liberty, the wisdom of 250 years of the American experiment, and the future rights of our children.”

Dueling polls have given similarly mixed impressions of Kavanaugh’s reputation among voters. CNN reported in mid-August that only slightly more than one-third of Americans want to see Kavanaugh confirmed, tracking with other polls that have suggested he’s less popular than past presidents’ unsuccessful nominees, such as Harriet Miers. For their part, Republican strategists have been floating reports arguing that support for Kavanaugh is high in red-leaning swing states like North Dakota, where Democratic Senator Heidi Heitkamp is up for reelection in November. Democrats from West Virginia, Indiana, Missouri, and Montana have been among the targets of millions of dollars in ad spending and local advocacy pressing for Kavanaugh’s confirmation.

A recent C-SPAN poll suggests that American voters care a lot about Supreme Court nominations, but may be more invested in the broad strokes than in the details. Among 2016 voters, 82 percent said court appointments were important for how they made their last ballot choices. Among likely voters, 69 percent said they had been following the news around Trump’s nominee. Yet only 35 percent of respondents could correctly name Kavanaugh, and nearly one-quarter said they have no opinion about his nomination.

Support for and opposition to Kavanaugh was also split almost exclusively along party lines in the C-SPAN poll. This is just one piece of evidence that Supreme Court nominations have fully become partisan political theater—a pattern that dates back to the fight against another unpopular nominee, Robert Bork, whose failed confirmation process yielded the eponymous verb “to bork,” or systematically vilify.

[The confirmation wars are over: Partisanship won out—and the contagion is spreading.]

And that’s how lines of questioning are likely to play out this week during the hearings. Democrats on the Senate Judiciary Committee will grill Kavanaugh about his views on abortion; his unclear role in reviewing the Bush administration’s terror-suspect detention policies; and his forceful recommendation that lawyers use explicit language in questioning Bill Clinton about his relationship with Monica Lewinsky during the Kenneth Starr investigation. Perhaps most importantly, they will likely ask him whether it is constitutional for presidents to be prosecuted for criminal wrongdoing while in office—a topic Kavanaugh has publicly debated in the past, and one that’s taken on new urgency in light of recent criminal findings against two of Trump’s associates, his former campaign chairman and his former lawyer.

But the most important haggling has already happened—and largely in private. Kavanaugh recently took a long meeting with Senator Susan Collins of Maine, a moderate Republican who is considered a swing vote in the Senate. Collins had previously said she would vote against any Supreme Court nominee who “demonstrates hostility to Roe v. Wade.” After her meeting with Kavanaugh, she said she was heartened by his apparent belief that Roe is “settled precedent.” Kavanaugh also managed to win the public support of Senator Rand Paul of Kentucky, another possible swing vote, who had expressed concerns about the judge’s record on privacy issues, including government collection of citizens’ data.

[Yale Law failed the Kavanaugh Test.]

Ultimately, these are the votes that matter. Kavanaugh does not have to win the public’s approval to make it to the Supreme Court; he only needs a majority of senators to vote in his favor. These hearings are the first step before Kavanaugh’s nomination comes to a full vote before the Senate.

Legislators may make some fireworks, especially as they dredge back up the political fights of the Clinton-era 1990s. But even if Kavanaugh sails through, his name may still become a rallying cry. For those on the right, he’s living proof of Trump’s lasting imprint on the federal judiciary. “The reason that evangelicals continue to support him at a 75-percent approval rate is that he’s fulfilling [his] promises” to create a conservative judiciary, said Robert Jeffress, one of Trump’s evangelical advisers, in a press release following Kavanaugh’s announcement. Because of this, the pastor added, Trump “will be seen as the most consequential president since Abraham Lincoln.”

On the left, Kavanaugh has become a symbol of anti-Trump resistance. Activist groups recently completed a “Rise Up for Roe Tour,” a campaign of “badass feminists” who believe “Trump’s Supreme Court nominee poses the greatest threat to abortion rights in America since Roe was decided,” according to one press release. If he is confirmed, Kavanaugh will be an even better Trump-era bogeyman, a character from the fictional world of Gilead in The Handmaid’s Tale, which activists see as the future to come.