July 11, 2018


President Donald Trump's choice of Brett Kavanaugh for the pending U.S. Supreme Court vacancy is going to make life politically tenuous for Democratic senators from Indiana, North Dakota, West Virginia, Montana and Missouri - all heavily pro-Trump states in 2016 - and, to a lesser extent, in Florida and Virginia. How they vote will potentially have career-ending consequences.

Presuming the Kavanaugh confirmation vote occurs before the Nov. 6 election, a vote to reject Kavanaugh would galvanize the conservative Republican base in those states, jeopardizing their reelection. Conversely, a vote to confirm Kavanaugh would inflame the liberal Democratic base, causing them to punish their senators by not turning out. It's a lose-lose situation, but the expedient solution would be to cast a pro-Kavanaugh vote, and get reelected.

Likewise, embattled Republican incumbents in Texas and Nevada, and Republican candidates for the open Tennessee and Arizona seats, will force their Democratic opponents to take a public position on Kavanaugh, which will clearly define those contests. The 2018 mid-term elections have been transformed from pro-Trump versus anti-Trump to pro-Kavanaugh versus anti-Kavanaugh.

As Democratic senate minority leader Chuck Schumer (NY) recently remarked, blocking Trump's Supreme Court choice takes precedence over getting reelected. The Republicans have a 51-49 Senate majority, and Democratic pressure on senators Claire McCaskill (MO), Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV) and Jon Tester (MT) will be intense. They need to stay with the team. If any defect, Kavanaugh gets confirmed.

In early 2016, after the death of conservative U.S. Supreme Court Justice Antonin Scalia, President Obama nominated Merrick Garland for the seat, but Republicans delayed a confirmation vote, arguing that the "next president" should make the selection. Republicans also changed the rules on cloture, the so-called "nuclear option," meaning that any filibuster to delay a vote could be shut down by a majority vote, not a three-fifths (60) vote. That rule is now in effect.

INDIANA: Democrat Donnelly won his seat in 2012 with 50 percent, topping Republican Richard Mourdock, the state treasurer, 1,281,181-1,133,621, a margin of 147,560, with 145,282 votes to the Libertarian candidate. Donnelly was a three-term congressman from northern Indiana and would surely have lost had not Mourdock upset 36-year senator Richard Lugar (R) in the primary. Mourdock then made, as described by the Almanac of American Politics, "incendiary comments on rape and abortion," after which his campaign spiraled into damage control. In the governor's race, then-congressman Mike Pence - now the vice president - won 1,275,424-1,200,016, a margin of 75,408 votes, and in the presidential race Mitt Romney topped Barack Obama 1,420,543-1,152,887, a margin of 267,656 votes. Clearly, Indiana is a Republican state, and clearly Donnelly won because Mourdock was a flawed candidate.

Republicans in 2016 swept the state, with the Trump-Pence ticket winning 1,557,286-1,033,126, or 56.5 percent, a margin of 524,160 votes, and Eric Holcomb winning the governorship by 161,893 votes. Republicans control every statewide office, the legislature, and seven of nine congressional seats. Donnelly is the last democrat standing. In the 2018 Republican primary, congressmen Todd Rokita and Luke Messer went brutally negative toward each other, and newcomer Mike Braun won with 41.2 percent. With no baggage and no congressional voting record to defend, Braun is the "perfect" Republican candidate.

A sexual harassment probe against the state's Republican attorney general is now getting headlines, but Donnelly's vote on Kavanaugh will be the game breaker. Donnelly faces a stark choice: Vote against Kavanaugh and lose, or vote for him and possibly win.

WEST VIRGINIA: This state has transitioned from heavily Democratic to heavily Republican, due largely to national Democrats' environmental and social policies. Obama-era restrictions on coal mining, coupled with 2nd Amendment and such social issues as abortion rights and gay rights, gave the state to Trump 489,371-188,794, or 67.9 percent, a stunning margin of 300,577 votes.

Manchin, a former governor, won in 2010 and 2012 because he positioned himself as an "independent." Obama, in 2012, lost 417,655-238,269, getting 36 percent. In that election, Manchin won 399,908-240,787, getting 61 percent. Manchin toyed with the idea of switching parties after Trump won, or leaving the Democratic Party and becoming an Independent, but didn't. He faces Patrick Morrisey, the state's Republican attorney general. His ally, Governor Jim Justice, switched to the Republicans in 2017.

Manchin's choice is clear: Vote for Kavanaugh, win, and be ostracized by the Democrats, or vote against Kavanaugh and lose.

MISSOURI: McCaskill barely won her first term in 2006 over a Republican incumbent in a Democratic "wave" year by 48,314 votes, and was gifted a second term in 2012 when her Republican opponent made a boneheaded remark about "legitimate rape." She occasionally dissented from the Obama Administration, on issues like the XL Pipeline and trade. But Missouri has become very conservative on cultural issues and very Republican.

In 2012 McCaskill won 1,494,125-1,068,159, or 55 percent, a margin of 258,644 votes, while Obama lost the state 1,482,440-1,223,796, getting 44 percent. McCaskill ran about 271,000 votes ahead of Obama. In 2016 Trump swept the state 1,594,511-1,071,068, or 56.4 percent, getting 112,071 more votes than Mitt Romney in 2012, and Republican won every statewide office. One of those winners, state attorney general Josh Hawley, is now running against McCaskill.

A sexual harassment scandal recently caused the Republican governor to resign, ramping up McCaskill's base among women and energizing Democrats. It is difficult to visualize a pro-Kavanaugh vote by McCaskill, especially since she gets most of her campaign money from liberal sources. An anti-Kavanaugh vote would spell her doom.

NORTH DAKOTA: Like Donnelly and McCaskill, Heitkamp was in the right place at the right time. In 2012 Romney won the state 188,163-125,287, getting 58 percent, while Heitkamp beat an unpopular Republican congressman 161,163-158,282, running 36,000 votes ahead of Obama. In 2016, Trump swept the state 216,794-93,758, or 63 percent, and a Republican won the governorship with 76.7 percent. Heitkamp supported the Obama Administration roughly 70 percent of the time.

Heitkamp now faces Republican congressman Kevin Cramer in a race considered a toss-up. Heitkamp has positioned herself as an "independent," but voting against Kavanaugh would put her with the Democratic majority, and the liberal protesters who will be dominating the news. A "no" vote hands Cramer the seat. A "yes" vote guarantees Kavanaugh his seat.

MONTANA: Tester won in 2006 against a lackluster Republican incumbent, and was reelected 236,123-218,051 against a popular Republican congressman, while Romney beat Obama 267,928-201,839. Tester ran about 35,000 votes ahead of Obama. Tester has become a Democratic "insider," chairing the Democratic Senatorial Campaign Committee during the last cycle. Trump won the state 279,240-177,709, or 55.2 percent, in 2016. Tester will be an anti-Kavanaugh vote, and that puts his seat in play.

FLORIDA: This is a marginal state, won by Obama in 2012 by 74,309 votes and by Trump in 2016 by 112,911 votes. Incumbent Bill Nelson (D) won his second term in 2012 by 1,065,184 votes, but faces an especially strong 2018 Republican candidate in Governor Rick Scott. The parties are polarized, both ideologically and geographically, with the core Democratic base consisting of African American and white liberals on the east coast Miami Beach corridor and Puerto Ricans around Orlando, and the core Republican base on the west coast and the rural upstate areas and the Florida Panhandle. Nelson positions himself as a "moderate," but needs his liberal base to win, so he will vote against Kavanaugh. If Scott can energize Republicans on this issue, an upset is possible.

TEXAS: Incumbent Ted Cruz (R) performed credibly against Trump in the 2016 presidential primaries, but is a polarizing and unlovable figure that liberals would love to beat. That is why they are pouring money into El Paso Congressman Beto O'Rourke's (D) campaign, who is making the race a referendum on Cruz. Polls show them running even. The Kavanaugh vote could be Cruz's salvation, as it shifts the focus from him to national issues. Liberals have a large base around Austin and San Antonio, with pockets of blacks and Hispanics in the urban areas, and Hispanics in South Texas. O'Rourke will have to come out against Kavanaugh.

Trump won the state by 807,179 votes in 2016, and Romney by 1,261,719 votes in 2012. The Democratic base is slowly growing, but not by enough to beat Cruz this year.

ARIZONA: Incumbent Jeff Flake (R) is a persistent critic of Trump in a state where Trump won by 91,234 votes and Romney by 208,422 votes. He retires rather than face an un-winnable primary. The starkly contrasting candidates are congresswomen Martha McSally (R), a former Air Force pilot, and Krysten Sinema, a social worker and teacher. Polls have shown Sinema slightly ahead. The Kavanaugh situation gives McSally an opening.

Of the 51 Republican senators, only Susan Collins of Maine and Lisa Murkowski of Alaska could stray, and that would be on the abortion issue. If Kavanaugh vows to uphold existing law, his confirmation is assured, no Democratic votes will be needed, and conservatives will maintain their 5-4 court majority - which could grow to 6-3 or even 7-2 if justices Ruth Bader Ginsburg, age 85, or Stephen Breyer, age 80, retire or die during the remainder of Trump's term.

Decades of a conservative court of constitutional "orginalists" as opposed to judicial "activists," is what has liberals inflamed.