Republicans Proceeding Forward With Kavanaugh Nomination In Doubt

Republicans intend to "plow through" on the Kavanaugh nomination even after yesterday's hearing, but it's not clear that they have the votes to confirm him.

The Senate Judiciary Committee is set to vote on the confirmation of Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court despite the fact that it remains unclear if they have the votes needed to get him over the top:

Senate Republicans are racing to confirm Brett Kavanaugh, betting that the Supreme Court nominee was persuasive enough in his denial that he sexually assaulted a high school acquaintance to counter the powerful testimony of his accuser, Christine Blasey Ford.

The Senate Judiciary Committee is planning to vote on Friday morning to advance Kavanaugh’s nomination to the full Senate floor. Senate Majority Leader Mitch McConnell (R-Ky.) then plans a Saturday procedural vote to formally move to the nomination, with a potential confirmation vote as early as Tuesday.

Publicly, Republicans do not have the votes yet to confirm Kavanaugh, but GOP leaders seem confident they can push him through with brute force. Majority Whip John Cornyn (R-Texas) wouldn’t say whether undecided Republicans would back Kavanaugh.

“We’re still talking through all those issues, and I’m optimistic we’ll get to confirmation,” Cornyn said as he left the Capitol.

Everyone is watching Sen. Jeff Flake (R-Ariz.), the undecided Republican on the Judiciary Committee who must weigh in on Kavanaugh on Friday and will determine whether or not he receives a favorable recommendation in the committee. Flake is agonizing over the decision, he said, and seemed to be vacillating on where he’ll land, viewing both Kavanaugh and Ford as credible on Thursday.

“If you’re making an allegation, you want there to be some corroboration. And that’s a tough standard,” Flake told reporters late Thursday as he left the Capitol. “I want to give it some thought tonight. I do. So, this is a tough decision. It really is.”

Kavanaugh picked up a key Republican vote shortly after a full GOP conference meeting immediately following Kavanaugh’s hearing, as Sen. Bob Corker (R-Tenn.) announced he would support the nominee. Corker and Flake were key to applying the brakes to Kavanaugh’s confirmation in order to hear out Ford.

But Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) remain undecided. Those two moderate Republicans, along with Flake and Sen. Joe Manchin (D-W.Va.), met privately before the Republican meeting to discuss the nomination. Manchin said no one in the room gave anything away on how they will come down.

Then, in the full GOP conference meeting, Murkowski, Collins and Flake offered their colleagues no signal of where they would land, according to an attendee. Rachel Mitchell, a lawyer who was retained by the Senate GOP to question Ford, broke down her analysis of the testimony to Republicans, but did not advise them how to vote. She told them that as a prosecutor she would not charge Kavanaugh or even pursue a search warrant, according to a person briefed on the meeting.

Sen. Ben Sasse (R-Neb.) would not say how he would vote as he left the meeting. Sasse, one of the most vocal Trump critics in the Senate, said Mitchell gave Republicans in the room a “30-ish minute” presentation during which she laid out “facts that were established and not established.”

(…)

In addition to Manchin, Democratic Sens. Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota are viewed as potential votes for Kavanaugh. All are up for reelection in red states. Senators and aides expect that Donnelly, Manchin, Murkowski and Collins will all vote the same way, though which way that is remains unclear.

Democrats believe Heitkamp could vote no. But her opponent in her Senate race, Rep. Kevin Cramer (R-N.D.), said he expects her to support the nominee despite Ford’s allegations.

Grassley declined to forecast how he thinks the critical Judiciary Committee meeting will go on Friday. “We’re meeting at 9:30 a.m., that’s all I can tell you,” he said. “There will be a debate starting at 9:30.”

The Washington Post’s John Wagner has more:

The Senate Judiciary Committee prepared to vote Friday on the Supreme Court nomination of Judge Brett M. Kavanaugh a day after a dramatic hearing in which President Trump’s nominee and a woman accusing him of sexual assault while a teenager offered starkly different testimony.

The committee is scheduled to convene at 9:30 a.m. to consider Kavanaugh’s nomination, with Republican leaders vowing to press forward with a final vote of the full Senate by early next week.

As of Friday night, three Republicans with potential swing votes — Arizona’s Jeff Flake, Alaska’s Lisa Murkowski and Maine’s Susan Collins — remained silent about their plans.

The most immediate focus will be on Flake, who sits on the Judiciary Committee, where Republicans hold an 11-to-10 majority. The nomination could still be considered by the full Senate with an unfavorable recommendation by the committee.

The votes of a couple of other red-state Democrats have also been in play.

Late Thursday, one of them, Sen. Doug Jones (Ala.), said in a tweet that he would vote no if the chamber presses ahead with consideration of Kavanaugh the day after hearing from Christine Blasey Ford, whom Jones said he found “credible & courageous.”

Roll Call, meanwhile, calls the Kavanaugh nomination’s fate as being in the “superunknown,” while Axios reports that the whip count leans toward confirmation. As things stand, we’re basically in the same position we were prior to the initial reports about Dr. Blasey Ford’s charges against Judge Kavanaugh when it seemed as though Kavanaugh was sailing toward confirmation but for the possibility that a handful of Republican Senators might be able to bring his nomination down. With the exception of the retiring Senator Bob Corker, who said last night that he would vote in favor of confirmation notwithstanding yesterday’s hearing, the identity of those Senators remains the same. Two Democrats who were seen as possible yes votes on the nomination, though, Doug Jones of Alabama and Bill Nelson of Florida, who is facing a tough re-election fight against Rick Scott, have announced they will be voting against the nomination.

The two most prominent, of course, are Senators Lisa Murkowski and Susan Collins, who had previously voiced concerns about Kavanaugh’s position on abortion rights but who had seemed to come around after meeting with the Judge and after his initial testimony before the Judiciary Committee during which he at least paid lip service to the idea that the precedent established in Roe v. Wade and reinforced in Planned Parenthood v. Casey. With that testimony, he seemed to have satisfied both Senators to the point where they would be willing to vote for him. Indeed, before the Washington Post story dropped the only question appeared to be how many Democrats would switch sides to vote for him, with Joe Manchin, Joe Donnelly, and Heidi Heitkamp, who had voted for Neil Gorsuch, being considered the most likely.

In the wake of yesterday’s hearing and the other charges against Kavanaugh, though, there’s at least some doubt about the fate of the nomination. Some reports seem to indicate that Murkowski, Collins, Manchin, and Donnelly appear to be committed to voting as a bloc such that no specific one of them would be marked as the Senator who put Kavanaugh over the top. Jeff Flake appears to at least be on the periphery of this group and, in interviews when he was leaving the Capitol Building last night, Flake seemed to be genuinely torn about what he would do, although it seems likely he’ll end up voting along with the Manchin-Collins-Murkowski bloc if the nomination gets to the floor.

Flake, of course, will be the first one to face a test on this nomination. Starting at 9:30 this morning, the Senate Judiciary Committee will meet to debate the nomination and to vote on whether to send it to the Senate floor for a final vote. In theory, at least, Senator Flake could at least slow the process down significantly by voting “No” or just voting “present” because there would not be a majority on the committee in favor of sending the nomination to the floor. Another possible Republican on the commmittee who could join Flake to try to block the nomination would be Nebraska Senator Ben Sasse, who has been playing his cards close to his vest on this nomination from the start. Even if that happened, though, there are procedural mechanisms that would allow Majority Leader Mitch McConnell to bring the nomination to the floor despite the unfavorable committee vote. In the end, then it’s what happens on the floor that matters the most. As things stand, McConnell can only afford to lose one Senator on the Republican side unless he picks up support from Democratic Senators to make up for the GOP “No” votes. Whether that’s going to happen remains unclear at this point, but it’s something that will obviously play itself out over the weekend.

Update: Senator Flake has announced he will vote “Yes” on the nomination, thus leaving Collins and Murkowski as the only reason Republican holdouts:

Meanwhile, Senator Joe Donnelly of Indiana, who had voted in favor of Neil Gorsuch’s confirmation announced that he is a “no” vote on Kavanaugh:

And another red-state Democrat, Jon Tester, announced he was also a no vote:

Sen. Jon Tester (D-Mont.) said Friday that he will oppose Brett Kavanaugh’s Supreme Court nomination.

Tester said Friday that he has a myriad of “concerns” about Kavanaugh, but could not get an in-person meeting with him to discuss the issues.

“I have concerns that Judge Kavanaugh defended the PATRIOT Act instead of Montanans’ privacy. I have concerns about his support for more dark money in politics. I have concerns about who he believes is in charge of making personal health decisions,” Tester said.

Tester added that he had “deep concerns about the allegations of sexual assault against Judge Kavanaugh.”

This basically leaves it up to Collins, Murkowski, Manchin, and Heitkamp.

Update #2: voted to advance the nominationAs expected the Senate Judiciary Committee , but there is talk of a delay pending the investigation.

FILED UNDER: Congress, Law and the Courts, Supreme Court, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. mattbernius says:

    Personal prediction* he passes either at 49 to 50 or 50 to 51.

    I expect that in the end Flake and Collins vote for him. For all the people saying it will be political suicide for Collins, the reality is she’s committed “political suicide” multiple times and still is here with us. Her next election is 2 years away, plenty of time to make up for this.

    As for Flake, he’ll tut-tut and fall in line as always. Especially for the chance to drive the court to the Right.

    * – caveat emptor: I’m a really crappy prognosticator.

  2. Gustopher says:

    If they don’t have the votes, and the White House is doubling down on the nomination, this is the fastest way to get rid of Kavanaugh and move onto the next judge.

    Alas, I think they will have the votes, and we will end up with a self-entitled partisan hack jackass on the Court.

    And I will be very disappointed if a Democrat casts the deciding vote — if Kavanaugh is going to be confirmed on Republican votes, then they can do what they they think they need to do for their reelection, but this man does not belong on the Supreme Court, and that it more important than any single Senator’s comfort (it’s an easy enough vote to explain away to anyone who can be convinced… “The President can and should pick someone without this baggage, I voted for Gorsuch, but I cannot vote for Kavanaugh”)

  3. Daryl and his brother Darryl says:

    It’s not in doubt. We will have a sexual assaulter in the SC to match the one in the WH.
    Stay classy, Republicans.

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  4. Daryl and his brother Darryl says:

    A fvcking rapist is going to overturn Roe.
    I guess that makes sense, in some perverted way.

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  5. mattbernius says:
  6. Kathy says:

    @mattbernius:

    Flake’s voting to confirm.

  7. Daryl and his brother Darryl says:

    @mattbernius:
    Flake will do what Flake always does…follow up his big talk with a whimper.

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  8. Kathy says:

    @Daryl and his brother Darryl:

    The party of “family values” and “personal responsibility” is happy to support sex offenders who won’t even acknowledge responsibility for their actions.

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  9. Daryl and his brother Darryl says:

    @Kathy:
    Yup…christians have always been in favor of rape.

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  10. James Pearce says:

    Some reports seem to indicate that Murkowski, Collins, Manchin, and Donnelly appear to be committed to voting as a bloc such that no specific one of them would be marked as the Senator who put Kavanaugh over the top.

    This is not the bloc you want deciding the vote if you think Kavanaugh is an entitled dude-bro perjuring rapist who’s going to overturn Roe…

  11. Daryl and his brother Darryl says:

    Think of it…now, if you are a Republican running for President you only have to contest the results of the race to the Supreme Court and you will be handed the office.
    This frat boy is going to make Scalia look non-partisan.

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  12. Daryl and his brother Darryl says:

    @Kathy:
    @mattbernius:
    Flake has to vote no in order to preserve his lobbying career.

  13. Scott says:

    This whole disgusting episode does long term damage (once again) to the structure and fabric of our institutions. At some point the delegitimization of the Supreme Court will result in the flaunting of a ruling by a State or Executive Branch. And then where will we be? To paraphrase Stalin: where is the Supreme Court’s armies? I doubt we will have an Eisenhower in the future to call in the national guard.

  14. Daryl and his brother Darryl says:

    Democrats should just not vote.
    Make a statement.
    It won’t matter one way or the other…but the fact that not a single Democrat voted for him will taint his decisions forever.

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  15. Daryl and his brother Darryl says:

    Look around you folks.
    You are witnessing the demise of the Republic.
    The Judiciary is the last pillar to fall and it is crumbling today.
    Pay attention, so you can tell your grandchildren what happened.

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  16. Just nutha ignint cracker says:

    The problem for Flake is that he was hoping that Trump would nominate a stealth hack with a more benign personal history. In any event, he’s put his spine back in the closet and is ready to do his duty for the party, so we can all breathe a sigh of relief that his crisis of conscience–whether he has one–is over (the answer is “no” BTW).

    I’ve mentioned this before, but I don’t think that “his decisions will be tainted” carries the weight that some would like to believe it does. There’s no appeal beyond SCOTUS and the likelihood that a Supreme will be removed is as remote as it always has been. Kavanaugh is certainly a good potential candidate for rewriting history, though.

  17. Bob@Youngstown says:

    After listening to Ford, and based on some of my wilder “friends” of years gone past, here’s what I think happened during the summer of ’82.

    Kavenaugh and Judge never intended to actually rape Ford, but wanted to prank her into thinking she was about to be raped. I’m inclined to believe that had they (or he) actually raped Ford there were be a high probability that they (or he) would be forced to answer to law enforcement. On the other hand, unwanted groping, throwing on a bed, grinding was just teen-aged lusty behavior , something that was not nearly as consequential as vaginal penetration. So it was something they could getaway with without the consequence of actual rape.

    So, why “prank” some unsuspecting girl, scare her, humiliate her. Because (1) they though it was fun, (2) because the boys position of privilege and power could be reinforced by subjugating her, (3) because it’s satisfying to be cruel to someone who can’t effectively fight back.

    So what is my evidence? I heard/saw the same thing going on in my high school. Further, the written record of BK yearbook and calendar and Judge’s subsequent writings suggest that they (and many of their high school friends) were using girls as objects of their own perversion and cruelty.

    Do I think that BK has changed, that he is not of the same juvenile mind as he was? – Perhaps so.
    Might he be appalled today by this behavior of yesteryear – Probably so.

    His, and my problem with him (and what should be a problem for the Senators) is his current deny, deny, deny.

  18. SenyorDave says:

    https://twitter.com/twitter/statuses/1045669346616528897

    I saw this posted on Balloon Juice, and I think the caption they had is very true:

    Every waking moment of the rest of Jeff Flake’s life should be like this one

    I don’t get this. The hearing yesterday wasn’t to see if Bret Kavanaugh should go to jail. There certainly wasn’t enough evidence to convict a person based on the testimony offered. That is a given. The hearing yesterday was to see if he should serve on the Supreme Court for the rest of his life. To vote yes you would have to say that you believe him to be 100% innocent. If you have a 5% doubt, then you would have to say I won’t vote yes without an investigation.

    The Republicans don’t care if he did this, and they most assuredly don’t want to know.

  19. Andre Kenji de Sousa says:

    @SenyorDave: THe Daily Show has the perfect answer to Flake:

    https://twitter.com/TheDailyShow/status/1045017623774339072

  20. Mikey says:

    Kavanaugh yesterday: I have the endorsement of the American Bar Association.

    ABA: Not so fast, we think there should be a delay in confirmation and an FBI investigation.

    Kavanaugh: I got into Yale Law School!

    Yale Law School: What the ABA said.

  21. Mikey says:

    And all of a sudden, all the people who were chanting “Lock her up!” about a person who, even after an extensive FBI investigation, had never been charged with a crime, are doing all they can to eliminate the possibility of an FBI investigation and spouting all this crap about “due process” and “innocent until proven guilty” as if they actually give a shit about those things.

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  22. Kathy says:

    @Scott:

    At some point the delegitimization of the Supreme Court will result in the flaunting of a ruling by a State or Executive Branch.

    That has happened before.

    With regards to El Cheeto and the Mueller investigation, I’ve few concerns. It’s true the Supreme Court has no armies or any enforcement powers, but Mueller and the DOJ do. The concern there is what will whoever replaces Rosenstein and Sessions do, and we know the answer to that pretty well.

    I’m more concerned about what happens after the midterms, when Trump is faced with legislation he’s against but can’t veto or prevent from passing. He has failed to act on such legislation already. He’s not one to be bound by norms or even the law. Things could get pretty ugly very fast.

  23. MBunge says:

    Well, at least you can filibuster Kavanaugh…oh, wait! You guys threw that away over a hissy fit on the replacement for Scalia.

    Here’s a thought: what if instead of screaming “rapist” on the basis of decades old and thoroughly non-credible accusations, the argument against Kavanaugh had treated him with respect but focused on the appearance of impropriety? Turn the temperature down, actually say nice things about Kavanaugh but insist the Supreme Court has to be above reproach.

    Would it have worked? Who knows? It certainly would have prevented Kavanaugh and Graham from kicking sand in your faces Thursday and made it a lot harder to galvanize Republicans.

    I mean, you lose Flake and turn Lindsey Graham into a righteous rage-monster? That’s impressive.

    Mike

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  24. george says:

    @SenyorDave:

    I don’t get this. The hearing yesterday wasn’t to see if Bret Kavanaugh should go to jail. There certainly wasn’t enough evidence to convict a person based on the testimony offered. That is a given. The hearing yesterday was to see if he should serve on the Supreme Court for the rest of his life. To vote yes you would have to say that you believe him to be 100% innocent. If you have a 5% doubt, then you would have to say I won’t vote yes without an investigation.

    Exactly. And it has to make any undecided person wonder why they’re rushing it through instead of taking a month to investigate.

  25. rachel says:

    @george:

    And it has to make any undecided person wonder why they’re rushing it through instead of taking a month to investigate.

    They think more shoes are gonna drop.

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  26. An Interested Party says:

    @MBunge: Good grief you’re full of $hit…the filibuster would have been voided no matter what Democrats previously did, Ford’s accusation hardly seem “non-credible”…what possible reason would she have to make all of that up? And Lindsey Graham’s little temper tantrum probably had more to do with him wanting to keep his current job rather than getting primaried from some hard right loon when he’s up for reelection…and losing Flake…oh please…these phony “moderate” Republicans hem and haw but usually end up doing McConnell’s bidding in the end…as far as galvanizing…well, once this overgrown frat boy is rammed through to the Supreme Court, plenty of women will be galvanized to make Republicans pay for their shoddy treatment of Ford and their dismissal of sexual assaults that still happen to far too many women…

  27. Daryl and his brother Darryl says:

    @MBunge:

    thoroughly non-credible accusations

    Which is why Kavanaugh refused an FBI investigation.
    You’re dumb.

  28. Moosebreath says:

    @An Interested Party:

    I generally agree, but I suspect that Graham has been told by Trump that if he plays ball, after the midterms, he will be the new Attorney General. Since Trump is the embodiment of Sam Goldwyn’s line that a handshake agreement isn’t worth the paper it’s printed on, I don’t know why Graham is willing to reverse course so fully, but that scenario makes the most sense to me.

  29. Daryl and his brother Darryl says:

    Flake has voted to move Kavanaugh out of committee based on a one-week delay for an FBI investigation.
    It is assumed that absent the FBI investigation he would vote no on the floor.
    Dennison seems to be saying he will go along with it.
    Not sure where Turtle-Face stands.
    It’s not clear if the investigation is to be on all accusations, or just Fords.

  30. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    It seems that Murkowski has joined Flake…so together they have the power to force the investigation.

  31. charon says:

    @Daryl and his brother Darryl:

    Some thoughts, just spitballing:

    – If they do not have the votes now, chances are slim they would have them a week from now.

    – One week is enough time for politicians to put their fingers in the wind and do some polling.

    – Maybe someone will use that week to try to talk Dennison into pulling the nomination?

  32. James Pearce says:

    @Daryl and his brother Darryl:

    It seems that Murkowski has joined Flake…so together they have the power to force the investigation.

    They are pushing the investigation because they believe it will clear Kavanaugh of the accusations, and then they can vote for his confirmation with fewer political inconveniences.

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  33. mattbernius says:

    @mattbernius:

    As for Flake, he’ll tut-tut and fall in line as always. Especially for the chance to drive the court to the Right.

    * – caveat emptor: I’m a really crappy prognosticator.

    Well at least I got one of those things right.

    Credit where it’s due, Flake threaded that needle in a way that was unexpected and not unwelcome.

  34. Kathy says:

    @charon:

    Maybe someone will use that week to try to talk Dennison into pulling the nomination?

    Talk sense to El Cheeto? They’d have better luck laying a curse on the nomination.

  35. charon says:

    @charon:

    Most people’s opinions on this stuff break down on partisan lines because not many people have watched the show.

    A week is time for more people to see footage of Kavanaugh, red-faced and angry, losing his self-control, getting smart-alecky with Amy Klobuchar etc.

  36. charon says:

    @Kathy: Apart from being a coward, Dennison is obsessed with his image. His consistant pattern is to back down, scurry away, when he see’s he is beaten.

  37. James Pearce says:

    @charon:

    A week is time for more people to see footage of Kavanaugh, red-faced and angry, losing his self-control, getting smart-alecky with Amy Klobuchar etc.

    I thought we needed a week so the FBI can investigate the sexual assault claims. But we need another week so everyone can see how deplorable Kav is on TV?

  38. An Interested Party says:

    I thought we needed a week so the FBI can investigate the sexual assault claims. But we need another week so everyone can see how deplorable Kav is on TV?

    I guess to supposedly independent liberals, both things can’t be true…

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  39. Teve says:

    I just blocked some rando on facebook for sneering at Dr. Ford and saying she’s dumb for talking to politicians when she would be talking to police if she were telling the truth.

    This thing is really bringing out the shitheads. Women are already voting 2-1 for Dems this year. Maybe the GOP’s trying to drive those numbers into African-American levels.

  40. Teve says:

    Great tweet:

    I don’t know too many of us could survive the “crying while talking about how much you like beer” portion of the job interview and still get the job.

    -@danblackroyd

  41. Kari Q says:

    @charon:

    Some thoughts, just spitballing:

    – If they do not have the votes now, chances are slim they would have them a week from now.

    If the investigation turns up little or nothing, they may still get it. Flake really, really wants to vote yes. He is looking for a way to do it without sweeping the issue under the rug. He, along with Collins and Murkowski, may use an investigation as cover to let them go ahead and confirm.

  42. James Pearce says:

    @An Interested Party:

    I guess to supposedly independent liberals, both things can’t be true…

    Tell ya what. If the current MO results in Kavanaugh withdrawing or being voted down, I will eat your shoe. If it doesn’t, you start posting under your real name.

    Me, I’m banking on Kavanaugh sitting on a 5-4 court with no real swing vote. Not because I want that–I don’t– but because that’s what we’re going to get.

    @Teve:

    Women are already voting 2-1 for Dems this year.

    “Women” women or college-educated non-white women?

    Democrats should proudly tout every single one of their pro-women policies, but they should do so without deluding themselves that “we represent women…and they don’t.”

  43. Kari Q says:

    @James Pearce:

    According to Harry Enten:

    Poll of the week: A new Quinnipiac University poll finds that among women Democrats are leading on the generic congressional ballot by a 58% to 33%, a 25-point margin. Republicans, though, lead among men 50% to 42%, an 8-point margin.

    That large gap between how women and men say they will vote in the midterm election is consistent with an average of live interview polls taken since June. The gender difference in the average is 26 points.

    And a September poll from Pew, which gets the same results:

    Democratic candidates have a 23-point edge over Republican candidates among women voters (58% to 35%).

    Granted, that’s not quite 2-1, but it’s pretty close. Of course, the election is still a month away, so something could change.

  44. Kari Q says:

    @James Pearce:

    “Women” women or college-educated non-white women?

    I foolishly included two links, so my response is in moderation. But in answer to this question, it’s not quite 2-1 for all women, but it’s pretty close: 58% to 33% according to Quinnipiac, and 58-35% according to Pew.

  45. James Pearce says:

    @Kari Q:

    it’s not quite 2-1 for all women, but it’s pretty close

    I respect you linking polls, even if I can’t see them, so here’s my snarky deplorable anti-Dem retort: I hope a lot of them live in red states.

  46. Just nutha ignint cracker says:

    @Teve:

    This thing is really bringing out the shitheads.

    This is the first (and, I think, only) topic that Florak has weighed in on since I can’t remember when. Draw your own conclusion.