All it takes for the Senate to block the nomination of Brett Kavanaugh to the Supreme Court is two votes.
It’s a tiny margin, and even tinier when you consider that Sen. John McCain (R-Ariz.) remains absent because of health issues. Vice President Pence can break a 50-50 tie, but if McCain can’t vote, a single Republican defection drops the GOP total to 49 and renders Pence useless.
So while no one knows what the outcome of this fight will be, we do know that Democrats can wage the strongest possible fight by keeping that margin to two votes, bringing pressure to bear on vulnerable Republicans and putting themselves in the best possible position to break those two votes loose.
Here’s a four-part playbook for what an aggressive effort by Democrats could look like.
First, Democrats need to focus on the most important takeaway from the GOP’s refusal in 2016 to even hold a hearing for Merrick Garland, President Barack Obama’s Supreme Court nominee: Conservatives win because they maintain unity, and progressives need to do the same. That means no hall passes get handed out on this vote. Senate leaders cannot control any vote except their own, but they have plenty of means at their disposal to persuade wavering members, and they can make it abundantly clear that no one will be excused for voting to confirm Kavanaugh.
The argument for granting such a pass — usually to Democrats who represent red states — hinges on teamwork: It’s worth letting some members break away on a given vote, the argument goes, because they need to vote with Republicans occasionally to demonstrate their independence and they will be there for other important votes down the road. But few, if any, votes will ever be as important as this one, and teamwork goes both ways. At the behest of red-state Democrats, Democrats passed up two winnable fights this year, providing the votes to let Senate Republicans confirm Gina Haspel as CIA director and roll back rules on Wall Street banks. Now, with everything progressives have fought for at stake if the Supreme Court holds a conservative majority for a generation, lawmakers from states that voted for Trump have to understand that this is one of those fights that defines what it means to be a Democrat. From concerns about the Affordable Care Act and a woman’s right to her own reproductive freedom, to Kavanaugh’s past writing that the president should not be able to be prosecuted, Kavanaugh has provided all Democrats with plenty of paths to get to “no.” They just need to pick one and take it.
Second, Senate Democrats should publicly declare that they have lined up 49 votes against Kavanaugh as quickly as possible so that they can shift into a full-court pressure campaign against their vulnerable Republican colleagues. One might assume that a senator will announce his or her decision when they make it, but sometimes lawmakers are tempted to put on a show of deliberation and wait weeks to announce their decision. There’s no time for that: Senate Majority Leader Mitch McConnell (R-Ky.) has announced that he will hold a confirmation vote in the fall, and the only shot at defeating Kavanaugh is to bring massive pressure to bear on Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and a few other vulnerable Republicans between now and then. When the entire caucus is publicly opposed to Kavanaugh, Democrats will have a clear field to define the debate on their terms without the distraction of their own holdouts. Sen. Robert P. Casey Jr. (D-Pa.), a top target of Republicans in 2018 in a state that Republicans carried at both the presidential and Senate level in 2016, provided the model by coming out quickly and decisively against Kavanaugh. All Senate Democrats should follow his lead.
Third, Democrats should make a clear declaration that every one of Kavanaugh’s writings and public utterances must be made publicly available so that it can receive the robust public scrutiny befitting such a pivotal nomination. McConnell tipped his hand by indicating that he was concerned that Kavanaugh’s massive paper trail may be problematic — Democrats should take the hint. Civility-conscious moderate Democrats should be able to join in this call for scrutiny, since it stands in complete contrast to Republicans’ treatment of Garland: Calling for public scrutiny, openness and transparency is the exact opposite of the stonewalling that Garland faced. Kavanaugh has written more than 300 opinions — many of which, as Trump himself pointed out, are now law — and they hold invaluable clues about how he will rule from the bench. The public deserves the benefit of this information.
Kavanaugh was also at the center of some of the most consequential political events of the past few decades, from Kenneth Starr’s investigation of President Bill Clinton to George W. Bush-era torture policies and warrantless wiretapping. There are potentially millions of pages of records related to Kavanaugh’s government service, which could shed light on his views on executive power and other critical issues that will probably come before the court. Kavanaugh’s communications from his time in government should be posted publicly — just as Republicans demanded that Justice Elena Kagan’s emails be posted during her confirmation in 2010. Kavanaugh also clerked for Judge Alex Kozinski, who was recently forced to resign amid revelations that he harassed at least six of his law clerks. What did Kavanaugh know about these episodes? Was he aware that Kozinski was sexually harassing his fellow law clerks, and, if so, what did he do about it? The public deserves answers to these questions and more.
Fourth, if Republicans reject Democrats’ requests, Democrats should force the issue by using the substantial power of the minority to grind the Senate to a halt and scuttle other Republican priorities — including funding the government when the current fiscal year ends Sept. 30 and refusing to allow confirmation of the dozens of other right-wing judges McConnell plans to confirm between now and the end of the year. Democrats have this power because the Senate operates by something called “unanimous consent,” which is exactly what it sounds like: Every single senator has to agree to do everything from calling a vote to mundane procedures as basic as convening in the morning and adjourning in the evening. If unanimous consent is not forthcoming, the Senate has to resort to painful, time-consuming votes and procedural obstacles. The effectiveness of slowing things down like this would be compounded by the fact that with McCain out of Washington, Republicans control only 50 votes on a daily basis. That means they will need Pence to be present for frequent procedural votes, presenting a scheduling nightmare. And since time and patience are finite, taking days instead of hours to confirm a single nominee or perform a routine piece of Senate business will result in fewer nominees confirmed and fewer Republican legislative priorities accomplished — until Republicans accede to Democrats’ eminently reasonable requests for scrutiny and transparency.
To be clear, denying consent is an effective tactic for delay, but it’s not a path to blocking Kavanaugh. If the GOP has 51 votes, the procedural delays can be overcome and Kavanaugh will be confirmed.
Denying those 51 votes is the whole ballgame. Win or lose, the stakes are enormous. As Senate Minority Leader Charles E. Schumer (D-N.Y.) said this past weekend, it’s time for Democrats to oppose Kavanaugh “with everything” we have.