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In a narrowly divided Senate, five undecided lawmakers – three Republicans, two Democrats – hold tremendous power in the high-voltage battle over Judge Brett Kavanaugh’s confirmation. There are clear political incentives for them to band together. But while they have been unified in their desire for a fair process, these senators are also navigating different political landscapes at home, and each has his or her own unique “brand” to protect. For Maine’s Republican Sen. Susan Collins, what matters most is a thorough and fair process. For Arizona’s Republican Sen. Jeff Flake, it’s a question of morality and a goal of restoring civil discourse. Lisa Murkowski (R) of Alaska has been focused on the need to believe women who have come forward to talk about sexual assault. Democrats Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia – who are both on the ballot this fall – are known for their willingness to buck their own party. But would Senator Manchin want to tip the scale for Mr. Kavanaugh? “He likes to be a compromiser,” says longtime congressional observer Ray Smock. “I think that he would hate to be the deciding vote.”
As the hours ticked by on the Kavanaugh hearing last Thursday, Sen. Susan Collins (R) of Maine was holed up in her Capitol office, watching.
Her aptly named “hideaway” is down a hall that’s off-limits to reporters, and up on the third floor via a tiny, paneled elevator – making it an ideal place to host the few undecided senators who will determine whether Brett Kavanaugh ascends to a seat on the Supreme Court.
Shortly after the hearing ended, Republican Sens. Lisa Murkowski of Alaska and Jeff Flake of Arizona, along with Democratic Sen. Joe Manchin of West Virginia, joined Senator Collins there. For 30 minutes, they huddled away from colleagues and the media, discussing ways to use their leverage to get more information. By the end of the next day, all had backed a plan spearheaded by Senator Flake to give the FBI up to one week to investigate sexual-assault allegations against Judge Kavanaugh from his high school and college years.
These four senators – along with another undecided, Sen. Heidi Heitkamp (D) of North Dakota – hold tremendous power in the high-voltage battle over Kavanaugh’s confirmation. In a narrowly divided Senate, Republicans can afford to lose only two of their members if all Democrats vote against.
There are clear political incentives for them to band together – and, if possible, to avoid the excruciating prospect of casting the 51st vote in favor or against. But while they are unified in their desire for a fair process, these senators are also navigating different political landscapes at home, and each has their own unique “brand” to protect.
Below are thumbnail sketches of the forces and motivations that may propel these senators, as they head toward a career-defining vote that could cement the grip of conservatives on the court for decades to come.
The moderate from Maine is famous for doing her homework. Those who know her say her approach to Kavanaugh is no different than for any other high court nominee. “She’s a stickler for data and information and trying to weed out things impartially,” says Lance Dutson, a former Collins staffer and a GOP strategist in Maine.
Collins puts a premium on a thorough and fair process, and her swing-vote status allowed her to help push a reluctant GOP leadership to hold last week’s hearing and now this week’s FBI investigation.
Before the explosive sexual-assault allegation by Prof. Christine Blasey Ford, Collins looked to be leaning toward confirmation, calling Kavanaugh “clearly qualified.” Though she favors abortion rights, she said she found Kavanaugh convincing in his explanations to her that Roe v. Wade is “settled law.” She voted to confirm him as a federal judge in 2006.
But Collins is under tremendous political pressure, with progressives raising more than $1.75 million to donate to a potential opponent in 2020 should she vote to confirm. Thousands of coat hangers have been sent to her office in Maine, as a gruesome reminder of the days before abortion was legalized.
Two years is an eternity in politics, yet some say if she votes no on an issue so important to Republicans, she’ll almost certainly face a primary challenge from a more conservative candidate. On the other hand, if she votes yes, she could lose crucial support from women voters, in a state where independents outnumber either party.
“There’s always this discussion” about high-wire votes, says Mr. Dutson. “Her political career is not based on any one vote in Washington. Her political insulation comes from the diligence of her work for the people of Maine.”
Most analysts agree Flake has the least to lose politically with this vote – because he is retiring at the end of the year. True, this staunch GOP critic of President Trump appears to be testing the waters for a possible presidential bid. But his future may be more assured on the lecture circuit, promoting a return to civil discourse and a willingness to work across the aisle, as he did with his 2017 book: “Conscience of a Conservative: A Rejection of Destructive Politics and a Return to Principle.”
It was Flake who, on Friday, upset the apple cart just as the Senate Judiciary Committee was set to send Kavanaugh’s nomination to the Senate floor, with a final vote expected early this week. Instead, he and his good friend, Sen. Chris Coons (D) of Delaware, worked out a deal to delay the process by up to a week so that the FBI could reopen its background check on Kavanaugh.
The Arizonan’s brand as the “conscience” of conservatism was on display in a talk with Senator Coons on Tuesday at the Atlantic Festival in Washington. While empathizing with the judge’s vigorous defense of himself in his opening statement at the hearing, he criticized the sharp, partisan tone of Kavanaugh’s interaction with senators. “We just can’t have that on the court,” he said – though later clarified that he did not mean that to refer specifically to Kavanaugh.
Flake has clearly struggled with this vote. He told reporters he had a sleepless night after Thursday’s hearing. He has heard stories of sexual assaults from many women, including two who confronted him in the Capitol Friday morning. He looked visibly pained at Friday’s committee hearing. On Wednesday, he decried President Trump’s mockery of Professor Ford’s testimony as “appalling.” Collins and Murkowski also condemned it.
Flake says he is awaiting the results of the FBI report, but he seems inclined to support Kavanaugh absent corroborating evidence to back up the sexual-assault allegations. “I want to support him. I’m a conservative, he’s a conservative judge,” he told reporters Friday.
Along with Collins, the Alaskan is one of the few Republican moderates left in the Senate. Last year, both bucked their party and voted to block the GOP repeal of the Affordable Care Act. Murkowski owes little to the Republican machine, having won her 2010 campaign as a write-in candidate after losing the primary to a tea-party challenger.
She and Collins are very close, and like her Maine colleague, she favors abortion rights. The Alaskan clearly believes the sexual-assault allegations have changed the nature of the confirmation debate.
“We are now in a place where it’s not about whether or not Judge Kavanaugh is qualified,” she told The New York Times last week. “It is about whether or not a woman who has been a victim at some point in her life is to be believed.” Murkowski recently told Alaska Public Media that she herself had had a #MeToo moment, though she declined to elaborate further.
Murkowski “can’t shake the fact that she’s a woman who, like a lot of other women, didn’t like what they heard from Kavanaugh – and I think that probably drives part of her vote,” says Jennifer Duffy, a Senate expert at the independent Cook Political Report.
Alaskans have a strong independent streak and Murkowski is cut from the same cloth. The state’s governor (an independent), and its lieutenant governor (a Democrat) have come out against Kavanaugh, as has the influential Alaska Federation of Natives. The Native community helped push Murkowski over the finish line in the 2010 election.
Of the three undecided Republicans, some experts believe she may be the one most inclined to vote against Kavanaugh.
Unlike any of the undecided Republicans, this Democrat faces the voters in a month. In the state that Trump won by the widest margin of them all – 42 points.
Manchin has worked hard to present himself as Mr. West Virginia, a friend to coal and not beholden to either party. He has largely succeeded. Polls show the well-known former governor is leading by an average of more than 9 points over challenger Patrick Morrisey, the state’s Republican attorney general, who is from New Jersey.
In the Senate, the conservative Democrat often reaches across the aisle, and he heads up the centrist Common Sense Coalition with Collins. Manchin has voted with Trump 61 percent of the time, according to the nonpartisan tracker FiveThirtyEight. That includes voting to confirm the president’s first Supreme Court nominee, Neil Gorsuch.
A poll last week commissioned by the Judicial Crisis Network (JCN), which supports Kavanaugh’s confirmation, showed 58 percent of West Virginia voters support elevating Kavanaugh to the Supreme Court; only 28 oppose. The majority of independents and women in the state favor his confirmation. Most West Virginians are also opposed to abortion rights, with a related question on the ballot this fall.
“Joe Manchin always puts the state ahead of the party, and I think he’s quite proud of that brand,” says Stephen Skinner, a Democratic strategist and former state legislator. If Manchin votes for Kavanaugh, it might “dampen enthusiasm” on the progressive side, but those voters “have nowhere else to go” in West Virginia. Indeed, 43 percent of voters in the JCN poll said that if Manchin backs Kavanaugh, it would “make no difference.”
But would Manchin want to be the senator that tips the scale for Kavanaugh? “He likes to be a compromiser,” says longtime congressional observer Ray Smock. “I think that he would hate to be the deciding vote.”
Manchin is keeping his cards close to his vest, not announcing a decision until he has to. In the meantime, he’s focused on the issue of most importance to his voters: healthcare.
Like Manchin, Heitkamp also is heading into an election, also in a state that Trump won – by nearly 36 points. And both are being targeted by the conservative Judicial Crisis Network in ads that challenge them to "stand with President Trump" on Kavanaugh, while liberals try to "ruin a good man with smears."
But it’s looking more and more like Heitkamp can vote against Kavanaugh if she pleases, because she’ll have nothing to lose, says Dianne Bystrom, director emerita of the Carrie Chapman Catt Center for Women and Politics at Iowa State University in Ames.
Heitkamp is trailing Republican Rep. Kevin Cramer by 10 points in the latest poll by NBC/SRA, and Republicans are increasingly confident they’ll flip this seat. Congressman Cramer is well known because North Dakota only has a single House seat, which makes him a statewide figure – and one that Trump has stumped for.
Like Manchin, Heitkamp touts her independence, having strayed from her party to vote with the president to confirm Gorsuch and pass the controversial Keystone pipeline.
But “there’s this sort of false narrative, that if she votes ‘yes’ on Kavanaugh, suddenly that’s going to make Republicans vote for her,” says Ms. Bystrom. “I don’t think that’s going to change who is going to vote for her and who isn’t, and it’s going to make women voters really angry” if she backs the judge.
If she were advising Heitkamp, says Bystrom, she would suggest she argue that she’s not against a conservative justice, just this one, because of the many questions that have been raised.