The Briefing: The hidden truths behind the Kavanaugh hearings

Sept. 06--WASHINGTON -- The first two days of Brett Kavanaugh's confirmation hearings proceeded just like so much that happens here, with an ever-intensifying sound and fury that drowns out reality.

Which, in this case, is this: Brett Kavanaugh will almost certainly be the next Supreme Court justice.

Judge the judge however you want: as a brilliant conservative legal scholar or a dangerous reactionary. But don't think these hearings will defeat him.

Democrats would if they could, but it's highly unlikely that they can.

As The Briefing mentioned months ago, with the Republicans holding a 51-49 edge in the Senate, Kavanaugh's confirmation most likely would come down to the votes of five senators. They are: Republicans Susan Collins of Maine and Lisa Murkowski of Alaska; and Democrats Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota

Presuming that the three Democrats vote no -- and that's a huge presumption -- everything would depend on Collins and Murkowski, who are among the rare elected Republicans who favor abortion rights.

And for months now, both have appeared to be signaling that they are comfortable with Kavanaugh.

"It will be very difficult for anyone to argue that he's not qualified for the job," Collins said in July. "He clearly is qualified for the job. But there are other issues involving judicial temperament and his political, or rather, his judicial philosophy that also will play into my decision."

Similarly, Murkowski said she found Kavanaugh more palatable than others on President Trump's list of potential high court nominees.

"Let's put it this way: There were some who have been on the list that I would have had a very, very difficult time supporting, just based on what was already publicly known about them," she said. "We're not dealing with that."

Of course, abortion-rights supporters and others have tried to put pressure on Collins and Murkowski to vote no, but to no avail so far.

And if those two Republicans join their 49 GOP colleagues who will almost certainly back Kavanaugh, it's game over.

And even if one or both of them flip, it's still possible that Kavanaugh will win votes from Donnelly, Heitkamp or Manchin, all red-state Democrats facing tough re-election bids this fall.

None of them have had a bad word to say about him so far.

"I plan to keep doing my homework and make a decision sometime after Kavanaugh's committee confirmation hearing," Donnelly said blandly and recently.

Manchin lauded the "very productive meeting" he had with the jurist, while Heitkamp strayed farther from the Democratic party line in a recent statement.

"North Dakotans expect more of their elected officials than partisan judgments," she said. "Politics should not be part of the vetting process or the decision-making process. Determining who should serve on the U.S. Supreme Court is too important."

Of course, progressives have plenty of reasons to try to block Kavanaugh's nomination. He could swing the Supreme Court to the right for decades, rendering conservative decisions on abortion rights and gay rights and health care and just about every other hot-button issue you can name.

And it's certainly understandable why many Democrats worry about Kavanaugh's expansive views on executive power at a time when the president who nominated him has an expansive and, well, unconventional view of the same.

Those reasons explain why Judiciary Committee Democrats have done everything they can to slow Kavanaugh's confirmation process, why they want to scour every document in his record, why 70 protesters got themselves arrested on the first day of the hearings.

There's another reason, too. A white-hot confirmation hearing might make progressive voters see red, which could fill Democratic coffers with green, which could help more congressional seats turn blue in the mid-term election.

Keep all that in mind if you're following the Kavanaugh hearings. Remember that they may be about much more than their conclusion, which is probably already foregone.

Happening today

The Kavanaugh hearings continue...President Trump holds a rally in Billings, Mont...Secretary of State Mike Pompeo and Defense Secretary Jim Mattis meet with Indian officials in New Delhi...The House Government Reform and Oversight Committee holds a hearing on the government's emergency response efforts...The National Academies of Science hold a briefing called: "Securing the Vote: Protecting American Democracy."

Good reads

The New York Times offers an anonymous op-ed from "part of the resistance inside the Trump administration" ... New York Magazine says Massachusetts Sen. Elizabeth Warren is getting a head start on other Democratic 2020 presidential candidates ... The New Republic says climate change could make California unlivable ... The conservative National Review joins the chorus of critics appalled by President Trump's attempted politicization of the Justice Department ... And The Washington Post's Margaret Sullivan weighs in on the controversy over Steve Bannon's on-and-now-off appearance at the New Yorker Festival -- saying enough, already, with Steve Bannon.

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