How Will The Kavanaugh Confirmation Affect The Midterms?

Brett Kavanaugh’s confirmation fight is now a matter for the history books. Justice Kavanaugh has already been sworn in and will join the other justices when the Supreme Court reopens on Tuesday. The next question to consider is how the bruising battle to confirm Kavanaugh will impact the midterm elections, now less than a month away.

The past week has brought positive polling news for Republicans that was almost certainly related to the Kavanaugh hearings. First, polling showed that Republican enthusiasm had risen sharply in recent months, finally catching up to that of the Democrats. Following on that news, the Cook Political Report moved three Senate races to more favor the Republican candidates. In one case, the race for Democratic Sen. Jon Testor’s seat in Montana, shifting polls give the GOP a chance to flip a Democrat seat. Jon Testor’s vote against Kavanaugh in deep red Montana may sway voters against him in the tossup election.

While Kavanaugh’s confirmation is good news for Republicans and their base, the bad news for Republicans is that they failed to make the case to voters that Kavanaugh should have been confirmed. FiveThirtyEight’s analysis of Kavanaugh’s approval rating showed that the judge was moderately popular when he was first nominated, but that his approval was already falling when Christine Blasey Ford made her accusation against him on Sept. 16. After the accusation, Kavanaugh’s approval fell below 50 percent and never recovered.

Kavanaugh’s approval rating fell with all demographics except Republicans, where he became more popular after the Ford accusation. Unsurprisingly, the largest drop was among Democrats, but Kavanaugh also had a net disapproval among independents. Ominously for Republicans, Kavanaugh’s approval fell among both men and women. The judge’s approval was still positive by about five points among men but was negative by 15 points among women.

It is the reaction of women that may tell the tale of the 2018 midterms. Even before the Kavanaugh accusations, the GOP was in big trouble with female voters. Many analysts, such as Dave Wasserman of the Cook Political Report already predicted that 2018 would be the “year of the angry female college graduate.” Brett Kavanaugh’s confirmation will do little to cool the tempers of angry women.

It must be remembered that the 2018 midterms are not one election, but rather a series of local and state elections. How the Kavanaugh confirmation affects the election will depend on the local electorate. In the case of red state Senate Democrats, opposition to Kavanaugh could hurt the incumbents and possibly tip some races to the Republicans.

Beyond red state Democrats, it becomes a question of which group is more motivated by Kavanaugh’s confirmation. Republicans voters will be inspired to reward their party for standing firm. For Democrat voters, the goal will be to prevent another conservative justice from being appointed in the event that Ruth Bader Ginsburg or Stephen Breyer leave the Court.

Thus far, President Trump’s appointments have had minimal effect on the balance of the Court. Gorsuch and Kavanaugh replaced the constitutionalist Scalia and the nominally conservative Anthony Kennedy. However, if President Trump appoints a replacement for Ginsburg or Breyer, two liberals who are also the oldest justices, the Court could veer sharply to the right. Preventing such a conservative movement would be a prime motivation for the left. To do so, they would need to win the Senate in 2018 and the presidency in 2020.

Brett Kavanaugh has already given Republicans a shot in the arm by boosting enthusiasm for the midterms, but he has also given Democrats a powerful reason to get out the vote. The fact that Republicans pushed Kavanaugh through against popular opinion may cost the GOP the votes of some independents and moderates. If the election is about the turning out the base then Republicans may gain an advantage from Kavanaugh. However, if voter anger spreads and independents are motivated to turn out in large numbers, the advantage will likely go to the Democrats.

Originally published on The Resurgent

Winning Republican strategies for 2015

Since the recent failure of the Republican attempt to defund President Obama’s executive immigration amnesty, much has been written, most of if it unflattering, about the future of the Republican Party. Many on the Tea Party right doubt the “backbone” of the Republican leadership and question their commitment to opposing President Obama’s policies.

What these critics do not provide is an answer to how the Republicans can overcome the Democratic filibuster that derailed the attempt to defund the amnesty. The problem was not “lack of backbone” on the part of the Republican leadership. The problem was mathematics. The Republicans lacked the 60 votes required by Senate procedural rules to end a filibuster.

The Republicans have a majority in both houses of Congress, but the majority is only meaningful if conservatives understand that it is a limited majority. Voters vested control of the Senate and House of Representatives with the Republicans, but they did not issue them a carte blanche to impose a conservative agenda.

The Republican majority is limited in two important ways. First, Senate rules require 60 votes for cloture to end debate on a bill. The Republicans have only 54 votes so it is axiomatic that a cloture vote will require at least six Democrats. Second, the Republicans are limited by President Obama’s veto. Even if a bill passes both houses of Congress, the president can veto it. Congress can override a presidential veto, but this requires 67 votes in the Senate and 288 in the House. Democratic votes (13 in the Senate and 41 in the House) would be required. To avoid wasting two years of a majority, Republicans need to take these limitations to heart and adapt a strategy to defeat them.

The first step is in casting aside unworkable strategies of the past. Defunding is a dead idea that should not be considered in the future. As with any other legislation, the idea is unworkable without a bipartisan majority. If Republicans have the votes to defund something, it would be better to simply repeal it outright.

Shutting the government down as a consequence of the House’s “power of the purse” has also proved unsuccessful in the past. A government shutdown is useful only as leverage if Democrats want to keep the government open. With a president who relishes the idea of using a shutdown to pummel Republicans, the strategy of a shutdown is pointless masochism. Republican leaders have quite sensibly rejected this course.

A successful Republican strategy will require one thing above all: a bipartisan majority. No conservative legislation can become law without Democratic votes. Republicans must peel off at least six Democratic senators for cloture and 13 to override Obama’s veto. This is a mathematical and constitutional fact. The question is how to do so.

The answer is to learn from the Democrats themselves. The Democrats in Congress have been successful because they stay united and split the Republicans over divisive issues like immigration. Republicans should ask themselves what issues can be used to divide the Democrats.

One such issue is the medical device tax imposed by Obamacare. This very unpopular tax is imposed on the manufacturers of such items as prosthetic limbs and pacemakers. It threatens thousands of American jobs as well as hurting the sick and disabled. There is bipartisan support for a repeal of the medical device tax, if not for Obamacare in its entirety.

If Republicans bring a repeal of the medical device tax to vote in Congress, Democrats would be forced to choose between voting to tax the sick or deserting to the Republican side. If the vote passes, Obama must allow it or publicly defend a veto. In either case, a vote to sustain the tax would be fodder for campaign ads by Republican challengers.

A second method for creating a bipartisan majority is to sweeten the pot with a compromise. Bill Clinton famously said that the Constitution could be subtitled “let’s make a deal.” If Republicans want to pass their agenda, they must induce the Democrats to vote with them, rather than simply expecting them to bow down before superior numbers.

One area where such a concession could be made is on the minimum wage. The minimum wage is an issue where the public supports the Democratic position. Recent polling has found strong support for raising the minimum wage, even in red states. In the 2014 elections, voters in four states that sent Republicans to the Senate enacted increases to their state minimum wages.

Trading a modest increase in the federal minimum wage for Democratic votes on Republican bills is a compromise that would defuse a popular Democratic issue while, at the same time, helping to advance conservative policies. The Republicans should not give in to a sharp increase in the minimum wage to $10 or $15 per hour, but a modest increase to the $8 to $9 range could be phased in over time.
Numerous studies, including one that looks at unemployment during the Great Recession, have shown that raising the minimum wage hurts low-skilled workers, but the economic effects of a modest increase to the minimum wage would be negligible. Thirty states already have minimum wages that are higher than the federal minimum wage according to the National Conference on State Legislatures. At least 14 states have already enacted or scheduled minimum wages that are $9.00 per hour or higher. Further, a 2013 study of minimum wage earners by the Bureau of Labor Statistics found that only 4.3 percent of workers earn the minimum wage. An increase to the minimum wage would affect few workers in a small number of states.

Negative effects on the economy could be further minimized by incorporating a separate minimum wage for teenagers. The BLS study reports that only three percent of workers over age 25 earn the minimum wage, compared with 20 percent of teenagers. Instituting a lower minimum wage for teens would protect their ability to find entry-level, part-time jobs.

For Obama’s executive immigration amnesty, the contentious issue that led to the almost-shutdown of the Department of Homeland Security, there is the low-yield nuclear option. In the Wall St. Journal, Curt Levey, a constitutional attorney with the Committee for Justice, called on Republicans to block Mr. Obama’s judicial nominees until he reneges on his executive action.

Blocking Obama’s appointees has many advantages that defunding lacked. First, it is possible. The Democrats cannot block the Republicans from blocking confirmations. There is no cloture or veto of a blocked confirmation. This strategy negates the two weapons that the Democrats hold.

Second, blocking confirmations is a win-win for Republicans. The optimal outcome would be that Obama reverses his executive action, which would be tantamount to surrender. If he stands firm, however, his nominees will never be seated as judges. This means that there will be more judicial openings for the next president, hopefully a Republican, to fill.

Finally, the potential for blowback is small. With a government shutdown, Republicans always take a hit in public opinion and lose support. That’s why Democrats try to goad them into that course of action. Blocking nominees is much lower profile and would not be noticed by most Americans. There would be no closed offices or parks and no furloughed workers to show on television. Lawyers who cannot get appointed to cushy jobs in federal courts are not sympathetic figures.

Many critics of the Republicans ask, “What was the point of winning the election?” if the Republicans can’t enact their agenda. The election gave the Republicans an advantage; it did not give them the ability to dictate terms to the Democrats.

The Republicans can use their majority over the next two years to further the conservative agenda and roll back pieces of Obama’s legacy, but to do so they must adopt realistic strategies that play to their strengths and work around those of the Democrats. Winning Republican strategies divide the Democrats, not themselves.

 

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