Brett Kavanaugh avoids a 50-50 confirmation

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Update: And just like that, the 50-50 possibility has gone by the wayside. In a lengthy floor speech, Collins announced her support for Kavanaugh, and Manchin followed shortly afterward with a statement announcing his support. That gives Kavanaugh 51 votes, including his first Democratic vote, and leaves Murkowski as a possible but unnecessary 52nd vote.

Brett M. Kavanaugh could soon deliver Republicans a vital conservative majority on the U.S. Supreme Court. But he might do so without getting a majority himself.

With three votes still up in the air before this weekend’s final vote on Kavanaugh’s nomination, we could very possibly be headed toward a 50-50 outcome. That tie vote would be broken by Vice President Pence, and Kavanaugh would be seated on the nation’s highest court. But for a man who could be so individually consequential to the long-term future of the court and the country (and who has unresolved sexual misconduct allegations hanging over his head), it would hardly be an ideal set of circumstances for anyone involved — least of all the court itself.

The vote of Sen. Lisa Murkowski (R-Alaska) on Friday morning against moving forward with Kavanaugh’s nomination was canceled out by the yea vote from Sen. Joe Manchin III (D-W.Va.). That made the vote 51-49 — the same as the overall partisan breakdown of the Senate. But there is no guarantee that either of them will vote the same way on final confirmation.

Sen. Susan Collins (R-Maine), a swing vote, was speaking at 3 p.m. Friday. (Sen. Jeff Flake (R-Ariz.), who was considered a swing vote, has announced he’s a “yes” on Kavanaugh.)

If two of those three wind up voting against Kavanaugh — perhaps most likely Murkowski, given her vote Friday, and Manchin, given his party affiliation — that still would leave Kavanaugh with 50 votes. (Republicans, however, would have to wait for Sen. Steve Daines (R-Mont.) to return from his daughter’s wedding to get them to 50, but they still could push it through.) A win would be a win, and a confirmation a confirmation.

As I’ve written before, though, confirming Kavanaugh isn’t the end of this story. Given the allegations and given Kavanaugh’s angry, partisan testimony last week, there has been concern — even on Flake’s part — that his confirmation would be bad for the judiciary. Erstwhile Kavanaugh backer Benjamin Wittes said it well recently:

What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would, after that performance, consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence? Quite apart from the merits of Ford’s allegations against him, Kavanaugh’s display on Thursday—if I were a senator voting on confirmation—would preclude my support.

Kavanaugh tacitly acknowledged this problem for him in a Wall Street Journal op-ed published Thursday night, admitting that he was “too emotional” at last week’s hearing and that he said things he shouldn’t have.

A plurality of the country opposes Kavanaugh’s confirmation, and Democrats are already talking about impeaching him. If new evidence emerges once he’s seated on the court, that could cause him problems. And we could layer on top of that an ascension to the Supreme Court without a majority of the votes.

For a country that is struggling with polarization, tribalism and faith in its institutions, that’s not exactly a recipe for stability.





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