Chances Are

Readers of a certain age will initially think of Johnny Mathis’ 1960 hit when they read today’s title. My apologies to a very talented singer; I am talking about the chances of Brett Kavanaugh being confirmed to the Supreme Court. As of this writing my assessment is that the chances are he will be; but it is far from a done deal. Let’s explore.  

With John McCain’s passing and Jon Kyl being sworn in to take his seat the Senate now stands 51-49 in the favor of the Republicans over the Democrats and the two independents that caucus with them. The possibility of a tie exists which would be broken in favor of Kavanaugh by Vice President Mike Pence. Therefore the Democrats have to keep their caucus solid and peel off two Republicans in order to stop the nomination. There is a slim possibility of that happening but the Democrats effectively have to go 2 for 2.

There are only two Republicans who might defect: Susan Collins of Maine and Lisa Murkowski of Alaska. They are both strongly pro-choice. If they are convinced that Kavanaugh will supply the fifth vote to overturn Roe v Wade they will probably vote against his confirmation. I predict a continued leak of documents between now and the final confirmation vote. Whether those and/or the hearings will persuade them that they cannot support Kavanaugh is something time will tell.

Another factor that gets little attention is simply Kavanaugh’s questionable honesty. It appears that he lied during both his 2004 and 2006 confirmation hearings. Depending on just what California Democrat Kamala Harris has on him and how she reveals it there is a chance that we will have conclusive proof that he lied during the 2018 hearing also. While I often disagree with both Collins and Murkowski on policy I have no reason to question either’s integrity. How the credibility issue plays with them is an open question.

Both are savvy enough politically to not defect alone only to have a Democrat(s) counteract them or to have Mike Pence nullify their action. On the politically pragmatic side voting against a conservative Supreme Court nominee is a tough vote for several Democratic Senators up for reelection in red states this November. If Chuck Schumer can get the two defections he must keep all his people in line. If I were Collins or Murkowski I would need a guarantee that the other and all in the Democratic caucus were voting my way before I would commit.

Distasteful as it may be, on the other side of that coin if Schumer cannot secure the defections he must release red state Democratic incumbents to vote whichever way they feel hurts them the least in November. While it can be viewed as a sellout, it is politically practical. At that point the fight is lost. What good is accomplished for the cause by also losing a Senate seat in the process? I’m thinking particularly of Joe Donnelly, Heidi Heitkamp and Joe Manchin but it may not be limited to just them.

Keep in mind that Mitch McConnell privately opposed Kavanaugh’s nomination because he feared he could be difficult to confirm. McConnell, not Donald Trump ultimately has to get the 50 votes. Trump controls one vote; Pence as the tie breaker if needed. All the rest is up to Mitch.

Chances Are is a pretty song. This situation is anything but. However it provides one more parlor game to play for a while. Another positive for Trump is that it temporarily diverts some attention from Russiagate.

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