Politics Chat: Will the Senate confirm Brett Kavanaugh?

By Aristophanes, Hermes and Dolos

Editor’s Note: The following conversation has been lightly edited for clarity, grammar and style.

Aristophanes (Ari): A lot has happened in the past week. President Donald Trump’s nominee to the Supreme Court, Judge Brett Kavanaugh, now faces multiple allegations of sexual misconduct from his high school and college years.

On Thursday, one of those accusers, Dr. Christine Blasey Ford, testified before the Senate Judiciary Committee. Senators on both sides of the political aisle questioned Ford, then later Kavanaugh himself, on matters relating to the charges.

On Friday, the committee voted to send Kavanaugh’s candidacy to the Senate floor for a final confirmation vote. However, one Republican on the committee, Sen. Jeff Flake of Arizona, demanded an FBI investigation into the affair, to take place before the Senate’s final vote. Trump subsequently ordered such an investigation, which is to be conducted over the coming week.

It’s been quite a whirlwind, but the American Unionist politics crew is here to make sense of what just happened.

So first things first: After this week’s events, how likely do you think it is we’ll ever see a Justice Brett Kavanaugh on the Supreme Court?

Hermes: I still find it pretty likely — I’d give it at least a 60 percent chance. But the odds are decreasing. Not to be Captain Obvious, but the results of the FBI investigation will heavily influence Kavanaugh’s fate.

Ford gave a very strong testimony, in my opinion. While Kavanaugh’s testimony was powerful, I think the committee’s Democrats picked it apart. Truly innocent people don’t normally act the way he did Thursday afternoon.

With all that in mind, I believe Sens. Flake, Murkowski, Manchin and Collins will either make or break the confirmation. I’d have the odds lower than 60 percent, but remember: after the Republican-controlled Senate abolished the filibuster for Supreme Court nominees to ensure Neil Gorsuch’s confirmation, Kavanaugh only needs 50 votes to make it through.

Dolos: After Kavanaugh’s testimony and Sen. Lindsey Graham’s off-the-rails tirade, it seemed all but certain to me that he’d be confirmed. But then Sen. Jeff Flake, America’s favorite off-white knight, may have brought it all crashing down with his call for an FBI investigation.

I believe Dr. Ford’s testimony, and I believe the FBI is likely to find something in its investigation.

Hermes: And, according to Trump, the investigation is already underway.

Ari: I think the confirmation process is slowing down at a point Kavanaugh supporters would ideally like it to speed up. That makes me a bit more hesitant than you two to say that Kavanaugh will be confirmed.

I stand by my prediction from about a week ago: Kavanaugh has a 25 to 50 percent chance of making it.

Hermes: My gut is telling me it’s a true toss-up, but I feel that, with how partisan the process has become, many of the swing votes will be pressured into voting along party lines. And if every senator votes along party lines, that’s enough to confirm Kavanaugh.

Ari: The FBI investigation is a wild card, and it’s not good for Kavanaugh to have his nomination in limbo for at least another week. We don’t know who else might be out there with Kavanaugh-related stories. The more time between now and the final floor vote, the more time for any additional allegations to surface.

Dolos: It’s tough for me to put my finger on an exact percentage, but until something else comes out it has to still be more likely than not. I’d say 60 percent.

Ari: 60 percent seems pretty in line with what I’ve seen from the betting markets. That’s roughly what “yes” shares are selling for on PredictIt, for example.

Dolos: I bet it’ll either be a couple of votes short or a couple of votes ahead, as opposed to an even tie. I have a hunch that the swing votes — Collins, Murkowski, Flake, Manchin, Heitkamp — will get together and ultimately vote the same way.

Ari: Dolos, I agree with you there. We’ve seen those senators huddling together throughout last week, presumably discussing their thoughts on Kavanaugh.

Dolos: They’re either very concerned about not being the only one out on a limb or they’re planning a moderates-only vacation to Bermuda.

Hermes: Is that why Phil Bredesen, the Democratic Senate candidate in Tennessee, hasn’t picked a side?

I also agree with Dolos, but remember that the FBI investigation is supposedly limited to Ford’s and Deborah Ramirez’s allegations (although Trump later denied that). I’m not sure how much of an effect any further allegations could have on how Republican senators choose to vote.

Ari: Also, there’s still a possibility for the nomination to be withdrawn, either by Trump or by Kavanaugh, himself. I don’t think it’s likely the nomination will be withdrawn by this point, but such a possibility is just another route by which this all could come crashing down.

Hermes: Kavanaugh and Trump aren’t backing down. Neither is Mitch McConnell, the Senate majority leader. If the nomination is withdrawn, that would be the most shocking turn of events.

Dolos: That’s what’s so crazy about this. There are plenty of other conservative justices on Trump’s short list that wouldn’t get the kind of heat that Kavanaugh is getting. One of them, Judge Amy Coney Barrett, is even a woman. And yet Republicans are continuing, as McConnell so daftly put it, to “plow through” this nomination.

Hermes: That’s because backing down would be a sign of weakness; Republicans want to “own the libs.” Kamala Harris made a great point that Kavanaugh mostly ignored — Neil Gorsuch, Trump’s last Supreme Court nominee, wasn’t met with this kind fo resistance because, well, he wasn’t accused of sexually assaulting anyone.

Ari: Listen, it’s hard to predict from the outside when an individual will finally reach his or her breaking point, or when they’ll finally be convinced that stepping down is the best way forward.

During the scandals that arose under former Missouri Gov. Eric Greitens, there wasn’t a single hint of doubt before the resignation. We thought Greitens would never step down. He endured so much criticism for months on end, bearing the weight of not just one, but multiple felony charges. He weathered it all. Then, all of a sudden, he didn’t. He resigned.

That can happen with Kavanaugh, too. Like I said, it most likely won’t. But it’s naive to think that it can’t.

Hermes: It’s not going to happen. I believe the New York Times made the claim that Republicans are using this battle to galvanize their voter base for the upcoming midterm election. Backing down this far in, right or not, would make Republicans appear weak to that same base. They want leaders to stand up to the people they don’t agree with.

Dolos: Jerry Falwell Jr. agrees.

Ari: Trump has many things to consider in this fight, and he often makes decisions on a whim. It’s still hard for me to say with certainty that he definitely won’t withdraw Kavanaugh’s nomination for whatever reason he cooks up.

But anyway, there’s something else we should talk about: it seems likely that Kavanaugh lied under oath.

As part of his testimony to the Senate Judiciary Committee, Kavanaugh released several calendars from his high school years. So several Democratic senators asked him about certain terms listed on those calendars. In his answers, Kavanaugh said boofing refers to flatulence and that ralphing had nothing to do with drinking copious amounts of alcohol.

I mean, c’mon man. We all know that’s not that those words mean, especially when used by a teenage boy.

Also, Kavanaugh claimed he’d never been so drunk that he’d lost memory of a night’s events, or so drunk that he’d woken up in different clothes than he remembered wearing. That’s despite a bevy of circumstantial evidence pointing to Kavnaugh’s lifestyle of heavy drinking throughout high school and college.

Dolos: It’s Beach Week, guys!

Kavanaugh is telling easily refuted lies. No one believes devil’s triangle is a drinking game, or that his ralphing is due to a sensitivity to spicy food. And the “Renate alumnius” term listed in the high school yearbook is not a joke referring to several boys dancing with the same girl. Come on, man.

Ari: Exactly. And he told what seem to be easily refuted lies while under oath before the Senate Judiciary Committee!

Dolos: That alone ought to be disqualifying.

Hermes: Does “under penalty of perjury” mean nothing to the pro-Kavanaugh side?

Ari: The underlying acts themselves aren’t that big of a deal (although the “Renate alumnius” thing is pretty awful). Having a drinking problem in high school and college is not disqualifying to be a federal judge, or even a Supreme Court justice, so long as those acts did not (a) involve more serious criminal activity, such as sexual assault, and (b) did not carry on into adult life.

But perjuring oneself? Yeah, a federal judge just cannot do that. A Supreme Court justice certainly cannot do that.

Hermes: Kavnaugh’s strategy here reminds me of Trump: give no ground to any of your critics. Deny everything and blame Democrats and/or the media. Your supporters will still have your back.

Ari: To me, these are some of the most damning points of Kavnaugh’s testimony. Even if you don’t find Ford’s testimony credible, I do not see how you can remain epistemologically honest and still think that Kavanaugh hasn’t perjured himself here.

Hermes: Could he fave felony charges if it’s determined he lied?

Ari: I don’t know. I would assume this sort of thing isn’t prosecuted very often, but I’m no lawyer. (A quick Google search confirms that perjury cases are few and far between.) I think it would be hard to establish beyond a reasonable doubt that Kavnaugh lied, as that’s a pretty high threshold.

So no, I don’t think Kavanaugh will face perjury charges.

Dolos: Do you think we’ll hear from Mark Judge, a named witness to Ford’s alleged assault?

Hermes: He’s willing to cooperate with the FBI, according to his lawyer.

Ari: Hermes is right. So, Dolos, I think it depends what you mean by “hear from.” I know some senators would like him to testify before the Senate Judiciary Committee directly. Even if he cooperates with the FBI, I don’t think it’s likely we’ll see him testify in person.

Dolos: I would be very interested to hear what they learn from Mark Judge. They should at least confirm when he worked at the Safeway in which Ford claims to have seen him.

Ari: Agreed. Anyway, I’d like to close this discussion with a question about the midterms. How do you think the Kavanaugh fight will influence the November election, which is now less than six weeks away? Will it have a different effect on House races as opposed to Senate races?

Dolos: Good question. One thing I’ve noticed: a lot of people watched these hearings. And I think many of them are understandably angry at what’s going on. We all watched as a sexual assault victim confronted Jeff Flake in an elevator. Kavnaugh is historically unpopular, and this feels like a cultural flashpoint.

I hope Ford’s testimony has made it easier for women to come forward with their stories. I hope it has made men come to grips with the way so many of them treat women. All that is to say, if Kavanaugh is confirmed, the blue wave will be a tsunami.

Ari: I believe that, if the Kavanaugh fight has a substantial effect on the midterms, it may very well boost Democratic candidates in House races, but either have no effect or hurt them in their red-state Senate races.

A recent Economist/YouGov poll, conducted from September 23 to September 25 — which was before Ford’s testimony to the Senate Judiciary Committee — shows voters split, but with more people against Kavanaugh’s confirmation than for it. As Dolos said, his approval is extremely low for a Supreme Court nominee, historically speaking. The gender split is interesting but not unexpected: in the poll, women are heavily against Kavanaugh’s nomination while men are ever so slightly in favor of it.

I think this fight will have an effect on the midterms regardless of whether Kavnaugh is confirmed. The hearings have become a part of the public conversation in a much larger way than I ever would have thought. Anecdotally, several of my friends, family members and coworkers who don’t normally tune into politics watched the hearings. The online news coverage was nearly inescapable. This is probably the biggest political news event of the year — perhaps even the biggest news event of the year, period.

Below is a screenshot of a particular portion of the Economist/YouGov poll that’s pretty telling. And remember, these numbers are from before the testimony blew up the entire story of the Kavanaugh confirmation. Just imagine how high they are now.

The prompt was: “How much have you heard in the news about Donald Trump nominating Brett Kavanaugh to fill the seat on the Supreme Court being vacated by Justice Anthony Kennedy’s retirement?”

Screen Shot 2018-09-30 at 12.32.20 PM

Dolos: If the number of people watching and discussing this at my office during the workday is any indication, people are certainly paying attention.

Ari: At my workplace, it seemed like nearly everyone had it on. I could hear the audio echoing down the halls.

Hermes: Now that our conversation has turned toward the midterms, I think it’s worth noting this poll from Change Research, which says a majority of voters would vote against senators who vote for Kavanaugh.

Here’s a quick summary of the numbers from Axios:

After the hearings, 51% of people said they are less likely [to] re-elect their senators. And people found Dr. Christine Blasey Ford more believable (50%) and credible (48%) than Kavanaugh (44% for both.) 50% of people said they will view the Supreme Court as less credible if the Senate confirms Kavanaugh.

Ari: Sure, Hermes. But the Senate map isn’t uniform. The closest contests take place in very red states, so I’m not sure how predictive that poll will be of Senate races, specifically.

Hermes: I understand that, but there are still a number of 50/50 races that will likely change their lean to more blue as a result of the Kavanaugh controversy.

Ari: I would like to see a poll of only Florida, Missouri, North Dakota, West Virginia, Texas, Tennessee, Nevada, Indiana, etc., voters, with an individual breakdown for each state.

Those above states are not representative of the country as a whole. The Kavanaugh hearing may have gone over much differently there… or not. I just don’t know.

I’m just saying, do you really think the Kavanaugh fight will help Democratic candidates like Phil Bredesen in Tennessee? I don’t think it will.

Hermes: I don’t think this will change the Tennessee race much, at least not while Bredesen is still on the fence about Kavanaugh. But I guess this probably does hurt him a bit.

Ari: Exactly. I think the same holds true for McCaskill, Donnelly, Heitkamp, i.e., Democrats in many of those “50/50” races you mentioned. Because the thing is, those races are 50/50 (roughly speaking) despite how red those states are.

Dolos: Have we reached peak Democratic energy?

Ari: No.

Hermes: What did Adlai Stevenson supposedly say about having the smart people’s vote? “That’s not enough, madam, we need a majority!”

Ari: Now, on the other hand, I do believe this could help a Democrat running in a 50/50 state… but how many of those are there? Maybe Nevada. Maybe Florida.

Hermes: While some Democratic candidates could be hurt, it’s worth noting this may increase the voter base they are able to tap into. It could bring many more less politically active people to the polls.

Ari: Ah, that’s not a bad argument. If more people come to the polls, period, that could help Democrats. But, in red states, especially in deep red states, I don’t think a Democrat necessarily wants a huge turnout. I think a red-state Democrat wins by keeping Republican voters home.

Dolos: Honestly, it’ll probably take both a Democratic surge and low Republican turnout.

I think turnout will be way up, for what it’s worth. On both sides of the aisle, but especially for Democrats.

Ari: Oh, of course it takes both. What I really mean to say is the latter is just more important than the former.

Hermes: I agree with Dolos. And many red states have Democratic pockets. For example, Tennessee has Nashville, Memphis and even Chattanooga. Higher turnout in those areas would go a long way.

When it comes to North Dakota and West Virginia, though… ¯\_(ツ)_/¯ 

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