Senate Democrats Throwing In The Towel On Kavanaugh?

Senate Democrats appear to be recognizing that there's basically nothing they can do to stop the confirmation of Judge Brett Kavanaugh to the Supreme Court.

Judging from the latest report from The Washington Post, it certainly looks as though Senate Minority Leader Chuck Schumer is already admitting defeat when it comes to the nomination of Judge Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court:

The top Democrat in the Senate has vowed to fight President Trump’s Supreme Court nominee with everything he’s got. Just don’t expect him to crack down on his red-state Democrats who go rogue and back Judge Brett M. Kavanaugh.

“Punishment is not how this place works,” Senate Minority Leader Charles E. Schumer (N.Y.) said in an interview this week.

Schumer is trying to stay upright on a nearly impossible political balance beam he has wobbled across throughout Trump’s presidency, caught between his party’s demanding left flank and centrist Democrats whose survival in ­November’s midterm elections will decide the Senate majority. No other congressional leader has experienced dueling pressures so acutely.

Although anger against Trump has reached a fever pitch in the Democratic Party and activists are clamoring for all-out war against Kavanaugh, Schumer has opted not to use hardball tactics to pressure moderates from Republican states to join the resistance.

The strategy reflects the pragmatic instincts of the 67-year-old Brooklyn politician, who 12 years ago helped sweep the party into power by recruiting and propelling several red-state Democrats to victory. But the decision also exposes him to a possible backlash from the liberal base if the Senate confirms Kavanaugh.

“He’s always mindful of not only the Democratic caucus position, but the impact it has on individual members. And of course, the highest priority are those that are up for reelection in tough states,” said Sen. Richard J. Durbin (Ill.), Schumer’s top deputy.

While Schumer has won widespread respect from his caucus, there is a collective sense that there is little he can do to twist arms on major votes such as a Supreme Court nomination.

Just how much influence does Schumer have over North Dakota Sen. Heidi Heitkamp’s decisions?

“None,” said Heitkamp, who last year backed Trump’s choice of Justice Neil M. Gorsuch and faces reelection in a state the president won in 2016 by 36 percentage points.


The Kavanaugh fight is a potential defining battle for Schumer, after an up-and-down 18 months. The Democratic leader, who boasts of knowing the personal phone numbers of his caucus by heart, held them together last year against the failed GOP push to repeal the Affordable Care Act and the successful Republican revamp of tax laws. But divisions this year over a banking bill and the confirmation of Gina Haspel to head the CIA left a bitter taste in the mouths of some Democrats.

Moments after Trump announced his pick, Schumer was at the forefront of the Kavanaugh resistance. “I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same,” he tweeted on July 9.

Since then, he has tempered expectations for defeating the nominee. Republicans hold a ­razor-thin 51-to-49 majority — with one absent as Sen. John McCain remains in Arizona battling brain cancer, and Kavanaugh needs only a simple majority to take a seat on the high court.

The odds of stopping Kavanaugh’s nomination have always been long for Democrats, and as time has gone on there have yet to be any real revelations about the nominee that would spark the kind of upheaval that might make blocking his nomination possible. Even with Senator McCain’s absence, Republicans have enough votes to get the nomination through thanks to the fact that the filibuster no longer applies to Supreme Court nominees. The only real change that Democrats would have in that regard would be if they could find a Republican willing to defect and vote against Kavanaugh’s confirmation, thereby killing the nomination on the floor. In the weeks since Kavanaugh was named as the President’s nominee, though, it’s become more and more apparent that this is unlikely. Senators Susan Collina and Lisa Murkowski, who were voicing concerns prior to the Judge’s selection about the impact of a Kennedy replacement on the Court’s ruling in Roe v. Wade, both seem to have made their peace with Kavanaugh and seem unlikely and unwilling to be the reason his nomination failed. Similarly, Kentucky Senator Rand Paul has voiced some concerns about Kavanaugh’s views regarding Executive Branch powers, but he has also done his best to maintain a good relationship with the President and it seems unlikely that he would want to go down in history as the Senator who crossed the aisle to kill the President’s Supreme Court nominee. Given all of this, the odds of stopping Kavanaugh’s nomination are essentially non-existent.

In addition to the low odds of a Republican joining the Democrats in opposing Kavanaugh, Schumer seems to clearly recognize that any effort on his part to stop red-state Democrats from crossing the aisle to support Kavanaugh is hopeless and, if it succeeded, could doom any hope that the Democrats have of retaking the Senate in January. Three of those Senators — Joe Manchin, Heidi Heitkamp, and Joe Donnelly — all voted in favor of Neil Gorsuch’s nomination last year and are at the very least sending signals that they’d be willing to do so this time too. The fact that the final vote will likely be within six to eight weeks prior to Election Day makes this even more likely. In addition to these three votes, other red-state Democrats in tight races could also find that it’s in their interest to vote for Kavanaugh rather than risk having a “No” vote used against them in last-minute advertising. Since Senate Democrats have at best a slim chance of gaining control of the Senate, it doesn’t make much sense for them to put these seats in jeopardy just to stop Kavanaugh’s nomination, especially since it’s apparent that Trump would merely replace him with another one of the equally conservative Judges on his short list.

All of this is not likely to please hardline Democrats who want to see the party do everything it can to stop Kavanaugh, but it is the politically prudent position to take, and Schumer is no doubt considering this fact as we get closer to a final vote on the nomination.

UpdateSenator Rand Paul has indicated that he will be supporting Judge Kavanaugh’s nomination:

As I noted above, Paul was one of a handful of Republicans whose support for Kavanaugh was uncertain. Thus, the importance of this endorsement can’t be understated.

FILED UNDER: 2018 Election, Congress, Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Greg says:

    I think you mean “long for Democrats” in your second original paragrah.

  2. Brian Weigand says:

    Mr. President, I suggest the absence of a quorum.

  3. Michael Reynolds says:

    I’ve just gone round with progressives on this on Twitter. I don’t know what these people think politics is, they seem incapable of separating their personal expressions of self from the business of deciding who does and does not have power.

    Because the point of politics, for the slow learners, is not virtue, it is power, the allocation and limitation of same.

    The only way to stop Kavanaugh is to get a GOP flipper – not gonna happen – and hold every Democrat – not gonna happen. And if we stopped Kavanaugh, so what? Who’s next? Can we stop that guy? Well, we could if I take the Senate which we have no freaking chance of doing if we hammer people like Manchin and Heitkamp and McCulsky into toeing the party line.

    What is it with progs that they are incapable of keeping their eyes on the ball? We are not going to be having a revolution, we are still in the same political game, and the point of that game is not for some Berkeley grad feel good about themselves, we have an obligation to vulnerable people, women, LGBTQ, POC, and others. Failing them so wanna-be commissars can strut and posture is a political crime.

  4. Daryl and his brother Darryl says:

    This guy is 53…so that’s, what, 30 – 40 years before we recover from Dennison?
    Every election matters.

  5. Daryl and his brother Darryl says:

    All I hope to get out of this nomination process is a commitment from Kavenaugh to recuse in any case that directly affects Dennison; eg consiracy, obstruction, emoluments, etc.
    If Democrats can’t accomplish that then they all need to get voted out.

  6. Joe says:

    You can’t save the Progs, Michael, if they want to die on every hill. As you indicate, there won’t be enough left to fight the actual war.

    On the other hand, the right wing of the Republican party has been more successful in forcing their legislators to die on every hill by promising to shoot them in the back if they don’t. None of this makes good policy.

  7. MarkedMan says:

    Senator Rand Paul has indicated that he will be supporting Judge Kavanaugh’s nomination

    I nominate that for the least surprising news of the day. Rand Paul’s play-acting at having to “think hard” about such decisions ranks up there with the most laughable charades in politics. I would say that he is like Lucy holding Charlie Brown’s football, but in Paul’s case the Charlie Browns no longer even bother showing up. I guess if gives his Kentucky voters some kind of thrill, but I sure don’t get it.

  8. Kathy says:

    @Michael Reynolds:

    Every battle has casualties and take sup resources. Some of the latter, especially in political battles, are non-renewable once lost. Therefore it makes sense not to fight a battle when you know you’re going to lose.

    The one exception is the last stand. I don’t think the Democrats are there yet.

  9. MarkedMan says:


    Every battle has casualties and take sup resources. Some of the latter, especially in political battles, are non-renewable once lost.

    True enough. But this has to be weighed against constantly conceding strategically important ground. Too much of this and when you finally decide to take a stand, it will be your last stand.

  10. Michael Reynolds says:

    Look, no one has been more alarmist than I when it comes to Trump; but Democrats are not losing. In fact we’re in pretty decent field position despite a lousy map. We have a very good chance of taking the House. We have a reasonable chance of taking the Senate – but that chance declines drastically if Washington DC and Bay Area ‘progressives’ insist on shooting their allies in the back.

    I fully concede that the left of the party should have a major hand in shaping the Democratic agenda. They skew young, they’re the future. But I worry that this generation does not seem able to differentiate between their narcissistic need to announce their purity, and political reality. The idea that Claire McCaskill should risk her seat to cast an empty show vote is insane. The person best suited to decide what will and will not help Claire McCaskill get re-elected is Claire McCaskill, and the rest of the Left needs to STFU and let her do her job.

  11. wr says:

    @Michael Reynolds: This is also good tactics by Schumer. No one knows what’s going to come out in the millions of pages they’re trying to expose on Kavanaugh. This way if they find something really toxic, the Red state Dems can appear to be honestly shocked and moved to vote against someone they were leaning towards — and hopefully bring some voters with them. If they just announced they were voting against because they were told to, it would do them no good at all…

  12. Michael Reynolds says:

    Exactly. If it turns out Kavanaugh runs a puppy mill and collects kiddie porn, Red State Dems will get a pass from their voters. Collins will still most likely roll over like a good little puppy – it’s what she does best – but a pure, ‘we don’t like him because: Trump’ isn’t going to do it for Red Dems, and we need to let those people (Manchin et al) figure out how to get re-elected. There will be plenty of time later to criticize them.

  13. Raoul says:

    As stated, Rand Paul tweets are not surprising- he truly gets more mileage for his head fakes than any other senator- what a fraud and a gas bag.

  14. MarkedMan says:

    @Michael Reynolds:

    We have a reasonable chance of taking the Senate

    God, I hope you are right. But I just look at the numbers and cannot see it. There are 35 seats up, 2 more than normal because of special elections. Dems have 26 and Repubs 9. That means Dems have to hold onto 26 seats without a single loss, and take 2 away from the Repubs. I just don’t see it. Now, in 2020 there will be 31 seats (2 less than normal because of special elections), of which 11 are Dem and 20 are Repub. And in 2022 there are 12 Blue and 22 Red. If those years were happening today, I could see an excellent change for pickup. But with those numbers I think its more likely the Repubs will pick up.

  15. Kathy says:


    True enough. But this has to be weighed against constantly conceding strategically important ground.

    given the choice between giving up ground, and giving up ground and taking casualties, I’d choose the former.

  16. SenyorDave says:

    @MarkedMan: I agree that taking the Senate is a major long shot. The only path I see is if the Mueller investigation wraps up soon and there is evidence of systemic corruption throughout the party.

  17. Pete S says:

    @Michael Reynolds:

    But I worry that this generation does not seem able to differentiate between their narcissistic need to announce their purity, and political reality.

    There has to be a way to get across the idea that yes, Kavanaugh will be a horrible judge. But for all intents and purposes he might as well have been nominated by Democrats who stayed home or voted for somebody other than Clinton in 2016. And pushing the red state Democrats to take a symbolic vote against Kavanaugh is tantamount to saying “One Kavanaugh is not enough. Let’s see what we can do to give Trump and the Republican Senate the opprtunity to appoint a couple more just like him!”

  18. Kylopod says:

    @MarkedMan: I don’t think the situation is as foreboding as you are implying with those numbers. Yes the Dems are defending numerous seats, but the vast majority of them are in states Clinton won and as far as we can tell are pretty much safe. Only 10 are in Trump states, and even there, several of them look relatively safe, such as Casey of PA, Baldwin of WI, Stabenow of MI, and Brown of OH. Even the handful of vulnerable ones–Tester, Manchin, Donnelly, McCaskill, and Heitkamp–are basically either neck-and-neck or favored at this point, a situation that a big enough blue wave could overcome. At the same time, Dems have a real shot of picking up seats in NV, AZ, and maybe even TN (with TX, MS, and NE having been discussed as long shots).

    Make no mistake: It’s still an uphill battle, but it’s definitely doable, and frankly I don’t think it’s even out of the question that we’ll end up with more than 51 seats.

  19. Gustopher says:

    If we get a Republican to flip, then Schumer can bring out the thumb screws.

    I honestly don’t think that red state Democrats have to vote like Republicans on all issues to get re-elected (is there anyone who is undecided who will be swayed by this vote? Only the partisans understand enough to care about the Supreme Court), but if the vote doesn’t affect the outcome, why take the risk? I’ll leave it to the candidates to decide what theater they want to perform.

    We may discover something about Kavanaugh that makes him uniquely offensive, and which can sway a Republican or two, and then it would be worth the hassle and pain to force Trump to move to the next name on his list.

    Questioning him on his statements against investigating presidents, and his role in drafting the torture memos might do that. Will Republicans be willing to vote yes on someone who believes that the Starr investigation was wrong and that Bill Clinton should have been able to get away with anything?

  20. MarkedMan says:

    @Kylopod: Ok. I’m going on the record. Dems lose two seats.

  21. MarkedMan says:

    @Kathy: Of course. If you are definitely going to lose, then retreat. But even a retreat doesn’t mean just turning around and running. You try to deplete the enemy as much as possible while you are falling back. And you can’t only focus on the thing you dare not lose. If you give up all the ground around it you’ve greatly reduced your ability to maneuver and completely elinated your chance to actually win.

  22. JohnMcC says:

    It isn’t a matter of concern or debate but it ought to be, that Judge Kavanaugh seems to have the same philosophy of Presidential authority that John Yoo displayed when he opined that GWBush could ignore prohibitions against torture.

    What is it with this “Federalist Society” that they wish they had a Monarch (who agreed with them, of course)?

  23. Todd says:

    The time for Democrats/the left to have been concerned about the Supreme Court was at this point two years ago.

    Trying to “pull out all the stops” to keep this from happening now is akin a person wearing a mask and constantly washing their hands after they’ve already contracted the flu.

  24. Jay L Gischer says:

    I find myself wondering how one squares being an “originalist” with Kavanaugh’s opinion on Net Neutrality as reported here.

    Kavanaugh’s opinion is that the First Amendment gives private parties the right to censor content. What’s originalist about that? As another judge on the same panel said:

    [N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule—i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP’s own commercial preferences.

    Nevertheless, Democrats can’t win this fight. They should figure out how to use it to maximize political impact.

  25. Michael Reynolds says:

    Since we’re getting into military analogies (and thanks, because it’s usually me) it depends for a start on whether we are attacking or defending, and that varies by state and district. But in general if you’re on defense you want to form up at the most easily-defended point which may be a river ten miles behind your current location. Military leaders who won’t retreat end up leaving a bunch of frozen bodies in the outskirts of Stalingrad and walking home on bare feet.

    I don’t think we need to give up any ground, I think we’re fine where we are if all we want is to hold, and if the Left doesn’t shoot everyone in the foot. Our single biggest vulnerability is immigration. We need to be able to defend credibly against the charge that we’re for open borders, and that requires more than saying ‘no we’re not,’ we should have a nice, neat, 3-point plan. Something reassuring for panicky white folks.

    If we’re attacking we have a range of targets: Trump, abortion rights, health care, wages, opioids. But again in a mid-term the DNC should not be playing the dominant role. The state and district fights are for the candidates to define. We should send them money and retweets, but not make demands.

  26. JohnMcC says:

    @Michael Reynolds: It’s been run pretty hard at times the past couple of years but the Bill Clinton era ‘Illegal Immigrant Reform and Immigrant Responsibility Act of 1996’ might be what you’re thinking of. As to it’s electability in 2018/2020 — I dunno. It has a Trump ‘sound’ nowadays and we’re dealing with much more inflamed emotions on the subject.