There are a lot of reasons why a 50-50 Senate is less bad than a 51-49 Senate with Democrats holding a clear advantage. What I want to drill down into this time is in regards to judicial nominations and why a split Senate gives Republicans a little more leverage in keeping some of the radical nominees off the bench for the next two years.

Procedurally, if there’s a tied vote on the floor of the Senate for a nominee, Vice President Kamala Harris, God save us all, would cast the tie-breaking vote. We know which way she would vote, and it would also probably involve a speech about Venn diagrams. But Harris doesn’t come into play quite yet if there’s a tie in the Senate Judiciary Committee.

Currently, Dick Durbin chairs Judiciary, but the makeup of the committee is evenly split between Democrats and Republicans. If a nominee comes up for a vote and all the members of the committees are present, a nominee doesn’t move out of committee to the full floor unless they are voted out of Judiciary with a majority affirmation. A tie vote keeps the nominee frozen in place unless Chuck Schumer as Senate leader files a discharge petition motion to bring it to the floor, a procedural maneuver he has employed before, but sparingly. The catch is he is on the hook every time he has to use this option. If the nominee is controversial enough, he is faced with forcing all of his Democratic colleagues to walk the plank not once, but twice for that particular nomination – once to bring it out of committee and to the floor, and then after floor debate where the nominee gets bloodied up by the minority party for a couple hours, a final floor vote. Given the fact that there are nine Democrats in a vulnerable position in the 2024 cycle, Schumer will have to pick the right nominee hills on which he wants to charge, because his members will not be willing to cast vote after vote on radical picks for the next two years just to keep Biden’s fever swamp happy. It would be too costly for their own reelection campaigns.

Let me give you a case and point from just last week. Julia Kobick has been nominated to fill a vacancy on the U.S. District Court out of Massachusetts. She’s ideologically to the left but otherwise at first glance, possesses the right pedigree – Harvard-trained, clerked under Ruth Bader Ginsburg, was deputy attorney general for Massachusetts, and then later solicitor general for the Bay State. Until Missouri’s Josh Hawley got ahold of her.

In six short minutes, she went from cruising through her confirmation hearing to looking like a weasel simultaneously trying to defend the indefensible and deny that she’s doing so. Hawley set the trap with an easy 1st Amendment question, whether free speech protections would apply to things like the internet, which didn’t exist when the Bill of Rights was adopted. She obviously answered in the affirmative and gave the textbook judicial caselaw that supports that point of view. You could see the smile on Hawley’s face knowing she’d walked into the trap before springing it on her, applying the same logic to the 2nd Amendment and her participation in the Caetano case.

Jaime Caetano was the subject of a 2016 Supreme Court case involving carrying a stun gun for self-defense, in which Caetano was arrested and prosecuted for violating Massachusetts’ gun laws. Kobick argued before the Supreme Court as solicitor general that the founders’ view of the 2nd Amendment couldn’t apply in this case because they would have had no idea what a stun gun was. Again, her logic was crystal clear to Senator Hawley that speech guaranteed in the 1st Amendment would hold in the era of the internet, something also of which the founders had no knowledge.

Once she was caught in the trap, she tried to parse that she wasn’t rejected out of hand at the Massachusetts Supreme Judicial Court, a confusion Senator Hawley hadn’t made, and a confusion from which he was not currently suffering. He kept reminding everyone watching and listening that her argument to the U.S. Supreme Court failed per curiam, meaning the decision was 9-0 against her. She lost. Unanimously. Here’s the thing. It’s one thing to be a lefty lawyer. It’s another thing entirely to present such a weak case that you can’t even convince Justice Sotomayor to vote your way. You are way, way outside the judicial mainstream if you’ve lost Sonia Sotomayor.

Back to the importance of the Georgia run-off on Tuesday. If the Senate were 51-49 in this current term of Congress, Josh Hawley isn’t on Senate Judiciary. He’s got the lowest seniority in the Senate of the current members of Judiciary, and the Republicans would have one less seat available on the committee. He’d be the literal odd man out. It’s very likely we’d have never seen her fall apart under this line of attack. Even Ted Cruz missed this opportunity.

The committee will now hold its vote on her confirmation. In the 51-49 universe, Kobick would be reported out of Judiciary on a party-line vote, a floor vote would be scheduled, and there wouldn’t be much to stop final confirmation to the bench. Instead, we’re in the 50-50 universe, where she’ll remain stuck in Judiciary after a tie vote. Chuck Schumer will have to go to Joe Biden and see how hard the President wants to fight for this nominee, and then have to start preliminary arm twisting of all of the Democrats up for reelection next time and count heads. Most of them will by now have seen her fall apart under Hawley’s questioning, and the vote will be uncomfortable for some of them. It would take just one Democrat to say no and her nomination goes up in smoke.

Now at the end of the day, the Democrats may join arms and gladly walk that plank for Joe Biden and Ms. Kobick. But with crime rising everywhere, Democrats are going to have to cast a vote for someone who tried to prosecute someone for merely carrying a stun gun? Really? My guess is stun guns would be pretty popular in most big inner cities these days. Seems to me people would much rather see criminals prosecuted and incarcerated rather than going after people trying to defend themselves.

Might Kobick still end up on the bench? Of course. But I’m all for gumming up the works and making it as hard politically for Senate Democrats to move radicals from in front of the bench to behind it as possible. That’s why elections matter. That’s why Herschel Walker needs your vote if you happen to be one of our many readers in Georgia. That’s why if you know someone in the Peach State, you need to reach out and make sure that that someone gets out and votes on Tuesday.