Bench Memos

Law & the Courts

The Kavanaugh Effect

After the unexpected death of Justice Antonin Scalia in early 2016, President Trump took the unprecedented step of publicly releasing a list of names from which he promised to nominate the next Supreme Court justice were he to be elected.

President Trump’s list proved to be a significant motivating factor for Republican and independent voters in 2016, giving unexpected victories to both President Trump and the Congressional republicans.

And today we see history repeating itself.  As of this evening, Senate Republicans have added at least three seats to their majority.  Yet just weeks ago, the GOP Senate majority seemed to be at risk.  What lesson can we learn from the evaporation of the much-anticipated “blue wave”?

That the judiciary matters to voters.  Much like the “Scalia Effect” of 2016, we are seeing a “Kavanaugh Effect” in 2018.

Last night’s midterm results showed that there were tangible electoral consequences for red state Democrats who voted against Justice Kavanaugh’s confirmation.  Four red state Democrats appear to have lost last night: Joe Donnelly (Indiana), Heidi Heitkamp (North Dakota), Claire McCaskill, and Bill Nelson (Florida). (The Florida race may be headed to a recount.)

All four of these senators voted against Brett Kavanaugh’s confirmation in October.  The only other red-state ​Democrat to vote against Kavanaugh, Jon Tester (Montana), barely won his race.  In contrast, Senator Joe Manchin (West Virginia) likely saved his Senate seat by voting for Kavanaugh’s nomination, and prevailed in West Virginia by a three-point margin.

The exit polls in these states show that the Kavanaugh confirmation weighed significantly on voters’ minds as they headed to the polls.  From ABC News today:

  • Indiana: “Those who call Donnelly’s vote against Kavanaugh highly important divide by 41-54 percent, Donnelly-Braun.”
  • North Dakota: “Forty-seven percent of voters said that Heitkamp’s (D) vote against Kavanaugh was important in their vote, and they went for Cramer by nearly 2-to-1: 38-62 percent.”
  • Missouri: “Fifty-one percent of voters say McCaskill’s vote against Brett Kavanaugh’s confirmation was a top factor in their Senate vote.”
  • Florida: “Those who call Nelson’s anti-Kavanaugh vote a top factor divide 47-52 percent, Nelson-Scott.”
  • Montana: “Forty-five percent say Tester’s vote against Brett Kavanaugh’s confirmation is an important factor in their vote.”
  • West Virginia: “Manchin was the only Democratic senator to vote to confirm Brett Kavanaugh to the Supreme Court. 40 percent of voters say Manchin’s vote was a key factor in their Senate vote.”

During his first two years in office, President Trump has made good on his campaign promise and prioritized nominating federal judges who are committed to the Constitution and the rule of law.  The confirmation of these outstanding nominees has also been a significant success for the GOP Senate and been a unifying issue for the Republican Party.  Last night’s election results demonstrated how important the issue of the courts continues to be to voters across the country.


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