Every chip in Senate Majority Leader Mitch McConnell’s pile has been shoved into the center of the table. His high-stakes gamble for conservative control of the Supreme Court may be decided in the coming week.
It is a bet he surely thought he would lose in the autumn of 2016. When the conservative hero Justice Antonin Scalia died unexpectedly in his sleep during a Texas hunting trip early that year, then-President Barack Obama wagered that McConnell (Ky.) might have allowed the Republican-led Senate to confirm Judge Merrick Garland to fill the seat. Garland was well liked, philosophically moderate and, as an added enticement for the GOP, pushing 65. He would have been, relatively speaking, a short-timer.
McConnell’s incentive to confirm Garland was simple: A reality TV star had hijacked his party’s presidential nominating process and appeared ready to drive the GOP bus over a cliff. If that had happened, Hillary Clinton would have won the White House. She could, if she wished, have taken Garland off the table and replaced him with a younger and far more liberal nominee who might have been around for 30 years or more.
But McConnell didn’t blink. (This might be literally true. Kentucky’s longest-serving senator has the fixed gaze of a tortoise.) He refused to move on Garland’s nomination. The high court stumbled along in forced moderation, four liberals and four conservatives settling only those cases that didn’t inflame philosophical divisions. In November, to Washington’s amazement, Clinton lost the election and McConnell won his bet.
Tune out for a moment, if you can, President Trump’s tweets and trade wars. This turn of events may well be the most consequential outcome of 2016. If Clinton had done marginally better in a few Great Lakes states, liberals would now be a majority of the Supreme Court, with healthy prospects for widening the margin and rejuvenating their team.
McConnell’s gamble on stonewalling Garland may have been the key to Trump’s narrow victory. It made the stakes crystal clear for self-professed Christian conservatives who might otherwise have been loath to vote for a boorish former casino owner. However, blocking Garland merely secured the Supreme Court status quo. Instead of losing Scalia’s seat to a liberal, conservatives filled it with Justice Neil M. Gorsuch. That’s no small matter on such a narrowly divided court — but it set the stage for something bigger.
Which brings us to this week’s showdown. Brett M. Kavanaugh, if confirmed, would add the decisive fifth vote to a conservative majority of such ideological purity as the give-and-take of American democracy has rarely, if ever, produced. Winning the court has been the goal of the American right since the liberal heyday of the Warren court in the 1960s. And the prize seemed to be in hand — until a sexual assault allegation erupted from Kavanaugh’s long-ago past to deal this week’s hand.
So let’s review the wagers. McConnell’s majority is 51 to 49, which means he can afford to lose one Republican but not two. (In a 50-50 deadlock, Vice President Pence would be the tiebreaker.) Before the assault allegations, a handful of votes from red-state Democrats were in play, but those odds have grown longer. Missouri Sen. Claire McCaskill, for example, came down from the fence to announce her opposition to Kavanaugh. Even Sen. Joe Manchin III, whose West Virginia constituents are some of the most pro-Trump voters around, is unlikely to cross the line if the outcome is in doubt, a member of McConnell’s leadership team told me, adding: “Manchin is always there when you don’t need him.”
Two women from the moderate wing of the GOP, Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska, could team up to kill the nomination; they’ve been playing their cards close to the vest. Two retiring senators, Jeff Flake of Arizona and Bob Corker of Tennessee, have been targets of Trump’s Twitter derision. They could take their revenge via Kavanaugh. If the Democrats stand united, McConnell needs three out of the four, which in gambling terms is like drawing to an inside straight.
And all of this is happening in the home stretch of another election — one that seemed like a lock for Senate Republicans until recently. Democratic incumbents are defending seats in GOP-leaning states from North Dakota to Florida. But with polls and momentum moving toward the Democrats, and the president’s approval rating sagging like rain-soaked cardboard, suddenly McConnell’s grip on power may be at stake.
One of several outcomes is in the cards. The showdown could fizzle, allowing Kavanaugh to be confirmed without adding to the danger Republicans face at the polls. In that case, McConnell would walk away with the whole pot.
But if events go in such a way that Kavanaugh’s fate seems to endanger McConnell’s majority, don’t expect the nominee to last long. The gambler will do what it takes to stay in the game — you can bet on that.
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