After Kavanaugh was confirmed, it was hard to spin what had happened as anything other than a defeat for Democrats, who had given their all—including a portion of their decency—to stop the nomination. Nonetheless, as soon as congressional Democrats saw that defeat was imminent, they signaled their plans to keep the issue alive through the election. The day before Kavanaugh was confirmed, five members of the House Judiciary Committee, including the ranking member, Jerry Nadler of New York, promised further investigations of the sexual assault allegations and of charges that Kavanaugh had perjured himself in explaining his past drinking and the embarrassing contents of his yearbook. Still, Kavanaugh and the Supreme Court did not dominate Democratic messaging heading into November, as Democrats stuck to tried-and-true themes such as health care and opposition to Trump.
The president, on the other hand, had come to power by deftly capitalizing on grassroots Republican concerns about respect for law, and he trumpeted his success in putting two new justices on the high court. “This will be an election of Kavanaugh, the caravan [of illegal migrants], law and order, and common sense,” he said at a campaign rally in Montana on October 18.6 At a Trump rally with the GOP senate candidate Josh Hawley on November 3, the crowd spontaneously chanted “Kavanaugh! Kavanaugh!” after Hawley lauded the president for putting “pro-Constitution judges on the bench.”7
Of course, the cliché in politics is that election day is the only poll that matters, and for good reason. The Democrats’ thirty-nine-seat gain in the House reflected an 8.6 percent margin in the popular vote, which might have affected the Senate races more than it did. Going into the election, Republican hopes for expanding on their Senate majority were muted. Of the six most vulnerable Democratic incumbents in the Senate, the polling website FiveThirtyEight had Republicans favored to win only in North Dakota. Republicans beat expectations, winning four of those races. The two they lost were West Virginia and Montana. The victor in West Virginia, Joe Manchin, was the only Democratic senator to vote for Kavanaugh, and that vote was widely recognized as important to his victory. Indeed, his opponent, Patrick Morrisey, used Manchin’s late vote to confirm Kavanaugh—after it was already clear he would be confirmed—as a talking point.8
The Democrat in Montana, Jon Tester, won his race after voting against Kavanaugh, but of the Democrats whose seats were vulnerable, Tester had the strongest polling numbers after Manchin. The four races Republicans won were all upsets, and their candidate in Florida, Rick Scott, won by a razor-thin margin of ten thousand votes out of more than eight million cast.
The Democrats had hoped to take a seat from the Republicans in the deep-red state of Tennessee, which Trump had carried by twenty-six points. The popular former governor Phil Bredesen was running for the open Senate seat against the Republican congresswoman Marsha Blackburn. Bredesen led early in the race, and as late as mid-September he was up by five points in a CNN poll. The race wasn’t polled again until the weekend heading into the final week of testimony in the Kavanaugh confirmation, when Fox News showed Blackburn up by five. Bredesen never recovered his lead.9
This definitive shift in the Tennessee race did not appear to be coincidental. The no-holds-barred attacks on Kavanaugh were hurting Bredesen’s campaign. After months of dodging questions about the judge, Bredesen announced his support of Kavanaugh’s confirmation on October 5, just one day before the confirmation vote.10 The last-minute and seemingly calculated show of support didn’t help. Blackburn won the race by more than ten points.
The press could no longer deny that the brutal campaign against Kavanaugh had backfired against Democrats. “Democratic Senators Lost in Battleground States after Voting against Kavanaugh” was the headline in USA Today the morning after the election. Exit polling by ABC News in the Senate battlegrounds of North Dakota, Indiana, Florida, and Missouri showed that voters for whom the Kavanaugh confirmation was an important factor in their vote consistently broke for Republicans by large margins.11
Democrats had poured effort and money into an issue that motivated Republicans more than their own base. By angering the GOP base, they may have sealed their own defeat in a number of close races—not only for the Senate, but extremely tight governor’s races in Florida and Georgia as well.
Congressional Democrats, supposedly convinced of Kavanaugh’s guilt, have hesitated to expend more political capital pursuing him since taking control of the House. To date, there has been no further investigation of the allegations against him or the charge that he perjured himself. Jerry Nadler, now chairman of the House Judiciary Committee, has acknowledged that all the talk at the beginning of October 2018 about impeachment was merely a tactic to shift the balance of the Court.12
Part of the reason Democrats changed the subject is that the confirmation battle helped Republicans as much as or more than it did Democrats. While polls showed the vocal Kavanaugh opponents Hirono, Leahy, and Klobuchar among the ten most popular senators in their home states, Republicans who supported him received a tremendous bump as well. January 2019 polls showed increased Republican support for Senators Collins, Graham, and McConnell. The latter, usually the least popular senator, saw his net approval jump by ten points from the previous quarter. Lindsey Graham’s approval rose fifteen points, the second-highest increase in the country, after his spirited defense of Kavanaugh. On the other hand, Senator Murkowski’s net approval fell by ten points, eighteen points among Republicans, and Senator Flake ended his time in office as the least popular senator.13
Overcoming vicious political attacks, Brett Kavanaugh had been duly confirmed by the Senate and taken his seat on the U.S. Supreme Court, but the effort from some quarters to persecute him persisted. After undergraduates at George Mason University discovered that he was to teach a course at Mason’s Antonin Scalia Law School, they began protesting. Demand Justice began running Facebook ads promoting a petition that he be fired.14 New York witches placed multiple hexes on “Brett Kavanaugh and upon all rapists and the patriarchy which emboldens, rewards and protects them.”15 The new justice had to contend with eighty-three ethics complaints stemming from his confirmation hearing, including allegations of perjury, as well as supposedly unbecoming conduct when he defended himself against gang rape accusations.16 A federal court dismissed all the complaints in December 2018.17
The left-wing magazine The Nation took it from there, calling on the Democrat-controlled House to impeach Kavanaugh. Even if impeachment were constitutionally possible for pre-confirmation actions, Republican control of the Senate would make it a pointless but potentially disastrous gesture.18 But the author of the article, Elie Mystal, was undeterred: “I know some Democrats will say that bringing charges against Brett Kavanaugh—impeaching him—is pointless. Some Democrats insist on living in a country where nothing is ‘worth it’ unless Republicans are likely to agree. I refuse to live in that world. If I waited for Republican approval before I tried something, I’d be shining shoes at Grand Central, as would befit my station.”19
Mystal may have landed on the central question to come out of the Kavanaugh nomination. Were the deplorable attacks, which inflicted so much damage on numerous lives and on the political process, worth it?
Many journalists and activists were so enthralled with a portrait of Brett Kavanaugh that had been cultivated by a coordinated and politicized gang of lawyers, public relations specialists, and distant acquaintances of the nominee that they were blind to the very different portrait painted by those who knew him longest and best.