This slipped under the radar last night amid the kerfuffle over Trump’s announcement but it shouldn’t be overlooked. The Kavanaugh pick has pleased Trump’s least favorite maverick:
“In selecting Judge Brett Kavanaugh to fill the vacancy left by Justice Kennedy, President Trump has chosen a nominee with impeccable credentials and a strong record of upholding the Constitution. Over the course of Judge Kavanaugh’s impressive legal career, he has built a reputation as a fair, independent, and mainstream judge who has earned widespread respect from his peers. One of the Senate’s highest constitutional responsibilities is to provide advice and consent on nominations to the Supreme Court, and I look forward to the Senate fulfilling this critical duty through a fair and thorough confirmation process.”
Two weeks ago, after Kennedy announced his retirement, I asked whether McCain might step down to give McConnell a potentially crucial extra vote for the nominee. For months that wasn’t an option, as McCain resigning would have triggered a vacancy that could only be filled by special election in Arizona. The last thing the GOP wants right now is to have to defend two seats there this fall when they’re already at great risk of losing one. However, as of June 1, McCain’s seat would no longer be filled by the voters; it’ll be filled via appointment, by Republican Gov. Doug Ducey. Another Republican vote is potentially available if McConnell really needs it, in other words. If McCain is willing to provide it, that is, either by returning to work or by standing aside.
Hence the question: Does his enthusiastic statement about Kavanaugh suggest that he’s more willing to do that now than he otherwise might have been, notwithstanding that it would greatly benefit his enemy Trump? A friend told me earlier that he wondered if Maverick would be as gung ho about a nominee like Amy Barrett, the preferred choice of the conservative base that’s never had much use for him and vice versa. If Barrett were the pick, maybe McCain would have decided that Trump could try to get her confirmed without his help. Now that it’s Kavanaugh, the more establishment choice, maybe not.
But wait, back up. Under what circumstances would McCain’s vote be needed, realistically? Collins and Murkowski are probably a package deal. after all. It’s hard to imagine what boutique issue might arise in Kavanaugh’s record that would spook one of them but not the other. If they are in fact a package deal then McCain’s vote is likely irrelevant: McConnell would be looking at a 48/51 vote if they walk, with no chance of victory unless he could flip at least one Democrat. If he can then McCain’s vote becomes hugely important — but only if Cocaine Mitch flips one and only one Dem. How likely is it that, say, Joe Manchin votes yes but Heitkamp, Donnelly, and the rest all vote no? Odds are that red-state Dems are a package deal to some extent too.
Precisely because Kavanaugh is so establishment, though, it’s unlikely that any Democratic votes will be needed. Does Susan Collins sound like she’s leaning no here?
REPORTER: Is this an easier vote than if Trump had chosen Judge Barrett?
COLLINS: I don’t think I’ll go into a comparison, but certainly when you look at the credentials that Judge Kavanaugh brings to the job, it’ll be very difficult for anyone to argue that he’s not qualified for the job. He clearly is qualified for the job, but there are other issues involving judicial temperament and his political, or rather his judicial philosophy, that also will play into my decision.
Nothing in his temperament or philosophy will spook Collins. That’s part of the reason Kavanaugh was nominated. He’s conservative but familiar and relatable in every way to Washington Republicans. As for Roe, when a reporter asked Collins about quizzing Kavanaugh on that, the first thing she brought up was Ginsburg’s approach during her own confirmation hearing 25 years ago of not saying how she’d rule on a case that might be before her. If even Susan Collins is already in “we play by the libs’ rules” mode then Kavanaugh’s getting confirmed whether or not McCain or his successor are in town.
Oh, here’s one more not insignificant reason to think he’s in good shape:
President Trump wanted a walk-off home-run win with his Supreme Court pick, so when confidants raised doubts about Brett Kavanaugh over the past week, according to Axios’ Jonathan Swan, Trump brushed them aside and offered the simple retort: “He’s got the votes.”
Was that cockiness by Trump or have Collins and Murkowski already assured him that, barring some bombshell revelation, they’re all-in? Remember, he consulted with them during the selection process.
The most realistic scenario for a 49/50 split that would suddenly make McCain’s vote critical involves not Collins or Murkowski but Rand Paul, who’s allegedly been sour about Kavanaugh and according to one report is leaning towards no. Paul might decide that Kavanaugh’s work on Bush’s counterterror programs after 9/11 are a bridge too far for him. I highly doubt that he’d bork the nomination if he was the deciding vote, but there’s always a chance. Here’s the thing, though: If there’s any Republican in Washington whom McCain detests more than Trump, it’s Paul. If Rand looks set to take down a judge whom Maverick admires, with Trump and McConnell somehow powerless to dislodge him, maybe McCain would ride to the rescue and save the establishment judge from his libertarian nemesis. I’d place the odds of him needing to do that south of one percent, but if Cocaine Mitch really, really needs a vote to offset Paul’s, that might be the most likely McCain scenario.