Judge Brett Kavanaugh’s confirmation as a Supreme Court justice would have major implications for the future interpretation of the Constitution, public policy in many areas and even the fate of U.S. democracy.
It probably won’t have much impact on the 2018 midterm elections.
For starters, it’s difficult to believe that anyone would switch their vote in U.S. Senate elections, much less U.S. House, gubernatorial, or other downballot races because President Donald Trump nominated Kavanaugh rather than someone else. Americans don’t normally vote based on policy. They certainly don’t vote on the differences between two conservative judges. Most voters won’t pay much attention to the court pick unless something very unusual happens in the confirmation process.
That doesn’t mean the nomination can’t have any effect.
Turnout is a major factor in elections, especially midterms. The effects can be huge if one party’s voters are fired up, and the other party’s supporters are indifferent, even if no one changes their vote. Democrats have a major enthusiasm advantage since the 2016 election. I’m not convinced that a confirmation fight would change that all that much, and I’m not willing to believe it would matter if Trump nominated someone other than Kavanaugh. No matter who Trump picked from his original list, most visible Republicans and Republican-aligned media outlets were going to be enthusiastic, and most visible Democrats and Democratic-aligned media were going to be intensely opposed. Voters will take their cues from them.
It’s also possible that there could be priming, or agenda, effects. If reporters are talking about a Supreme Court confirmation fight, they won’t be talking as much about something else. Given that the president remains unpopular, that could be a small advantage for Republicans. Beyond the initial news of the nomination, however, it’s not easy to predict what the media will be discussing or how. Democrats will want to keep the focus on health care and other policy areas where they poll well; Republicans will want the opposite. Democrats will likely trot out evidence that Kavanaugh was very partisan before he became a judge; Republicans will emphasize, as they did in Trump’s rollout at the White House, that the nominee is well-qualified and that he’s a sports-loving, charity-performing, patriot. Most likely, Kavanaugh will say very little during his confirmation hearings, and any agenda effects will be minimal.
Then there’s the possibility that a handful of Senate contests will be directly affected because incumbents will have to vote on the nomination. That may be overstated. Yes, Democratic senators in Republican states such as Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp and West Virginia’s Joe Manchin will have another tough vote to take (as will, I suppose, Republican Senator Dean Heller from Nevada). But they’ve had to take a lot of tough votes in the past, and most voters don’t base their decision on that sort of thing.
And anyway, if Kavanaugh performs well in his hearing and doesn’t generate any unexpected controversy, he’ll likely win the support of all 50 Senate Republicans (with John McCain unavailable), meaning that Democrats who fear electorate retribution could wind up supporting the judge. In the less likely event that Kavanaugh proves so unpopular that he loses the support of one or more Republican, then voting against him probably won’t be a real problem even for Democratic senators in Republican-leaning states.
The most important thing to remember is that other events will push the court battle off the front page most days until confirmation. That happens even during slow news days, and there haven’t been many of those recently.
And with a vote expected as early as the first half of September, it’s likely that even a very contentious nomination will be forgotten by Election Day by all except the most solid partisans — and their votes aren’t up for grabs.
In the long run, it’s very difficult to predict the electoral effects of an even more conservative court. There could be a backlash if Kavanaugh joins a majority to overturn popular legislation. That could even happen if a ruling is overall popular, but strongly opposed by some Democratic groups. That’s because intensity tends to be on the side of the disgruntled out-party, not the satisfied incumbents. But that’s all for 2020 and beyond.