A protester opposed to Supreme Court nominee Brett Kavanaugh holds a sign outside the U.S. Supreme Court in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Kavanaugh's Confirmation Is Now All But Inevitable

(Bloomberg Opinion) -- The FBI report on Supreme Court nominee Brett Kavanaugh, such as it is, is complete. Republicans are saying it supports him, and Democrats are saying the investigation was constrained by the White House and failed to do a thorough job. We’re at the end game.

The important context here is who backs  Kavanaugh, who opposes him, and who the swing voters are. Those factors are probably going to get him on the court. 

The first problem for Kavanaugh opponents is pretty obvious: There are 51 Republicans in the Senate, so the anti-Kavanaugh camp has to appeal to potential Republican opponents. They can achieve this by doing whatever they can to make the nominee extremely unpopular, and hope that a couple of Republicans become so worried about public opinion that they vote against him. That’s difficult, and it’s made a lot harder by another bit of context: Senators Susan Collins, Lisa Murkowski and Jeff Flake -- the last two undecided Republicans, plus the one concerned enough about procedure that he forced a week’s delay -- aren’t on the ballot this year. That doesn’t mean they’ll necessarily ignore voter sentiment, but it does make them better able to resist pressure.

For Kavanaugh opponents that means the better bet is to find things that those three senators particularly care about and play to those. Unfortunately, those interests don’t necessarily correspond with issues that are likely to resonate with swing voters. For example, most voters probably don’t like overt displays of partisanship by anyone, let alone a Supreme Court justice. But Republican senators aren’t especially likely to be upset that the nominee is a partisan Republican. In addition, some have suggested that Democrats hold a hearing-like event and invite witnesses the FBI didn’t hear from. That might hurt Kavanaugh with the public at large,  but if Collins, Murkowski and Flake considered it an inappropriate stunt, it would backfire.

What also makes defeating Kavanaugh difficult, if not impossible, is that Republicans have clearly convinced themselves that they will be rewarded electorally by supporting him and punished if they move on to another nominee. But I  think that’s  pretty unlikely to happen based on how elections usually work, and Nate Silver doesn’t really see any sign of it in the polls. But a lot of Republicans believe that the only thing that matters, or at least that they have control over, is the intensity of their strongest supporters. They increasingly look past any swing voters. And they ignore the possibility that the extremism and partisanship those strongest supporters love could also increase enthusiasm among Democrats, and push some more loosely attached Republicans away from turning out to vote. 

In other words, Republican senators are happy to accept a trade that satisfies  the crowds at Donald Trump rallies, even as the president’s approval ratings have been historically low, despite a pretty strong economy and relative peace abroad. 

In other words, sticking with an unusually unpopular Supreme Court nominee fits the same pattern as supporting a highly unpopular tax bill or trying to repeal the Affordable Care Act. In each case, it would have been easy for Republicans to compromise and still get a lot of what they wanted (in the Kavanaugh case, by replacing him with an equally conservative nominee). And a few Republicans seem at least open to such ideas, which is why the Obamacare repeal ultimately fell short and why this nomination has never been a sure thing. 

In any case, it’s always going to be extremely difficult to defeat a president’s Supreme Court nomination when the president’s party has a majority in the Senate and he chooses someone in the party’s ideological mainstream. And that’s what’s probably going to put Kavanaugh on the Supreme Court. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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