Commentary: For Democrats, hopes of defeating Brett Kavanaugh's nomination lie with public

From the moment Donald Trump nominated Brett Kavanaugh to the Supreme Court, the conventional wisdom among the Washington elite has been that Democrats can't stop the Senate from confirming the most conservative justice in a generation. Admittedly, the numbers don't look good for us. Republicans may hold the slimmest of majorities, 50-49, but they no longer need a super majority to to confirm him, and Kavanaugh's nomination hearing takes place this week. 

Arizona Republican Gov. Doug Ducey is also sure to appoint a new senator within days to fill the seat left vacant by John McCain's death, bringing the GOP majority up to 51-49 before Kavanaugh's confirmation vote.

Progressives are desperate to block a justice who could roll back women's reproductive rights and affordable health coverage, and who believes, as CNN pointed out, that the president may ignore the law if he or she believes it's unconstitutional.

Yet Democrats can still win against Kavanaugh – if we make it clear that the public is with us.

Recent polling shows there is an opening: Americans broadly oppose Kavanaugh, in particular on issues like the health care law and on abortion. An August CNN poll pegged Kavanaugh as the least popular Supreme Court nominee in 30 years, with just 37 percent support. In aggregate, Kavanaugh actually fares worse than two previous failed Supreme Court nominees, Harriet Miers and Robert Bork. Several polls both before and since his nomination found Americans overwhelmingly oppose overturning Roe v. Wade and want to preserve the Affordable Care Act. Even a majority of Republicans – 52 percent – doesn't want to see Roe v. Wade overturned.

The key votes in the Senate rest with a handful of senators who must be convinced that their voters at home feel the same way. That means demonstrating to Democratic senators Joe Donnelly of Indiana, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota – who are all running for reelection in states that Donald Trump won by double digits in 2016 and who all voted for his first nominee, Neil Gorsuch – that they can oppose the Kavanaugh nomination without paying a price on November 6.

It's no wonder Demand Justice – a pop-up advocacy group started by former Hillary Clinton spokesman Brian Fallon hours after Kavanaugh was nominated – has been fielding surveys in these states to motivate these Democrats to stand their ground. 

But to block Kavanaugh, Democrats will also need two Republicans to vote against him, since Vice President Mike Pence would vote to break a 50-50 tie. Republican Senators Lisa Murkowski of Alaska and Susan Collins of Maine are the likeliest targets here. They've been swing votes in the past on health care and women's reproductive rights. Planned Parenthood, NARAL, and dozens of other advocacy organizations ranging from labor unions to environmental activists have been pressuring the two with efforts to mobilize millions of their supporters to oppose Kavanaugh, urging them to text their senators, call and visit them. This Protect Our Care poll indicating nearly half of Maine voters would vote against Collins if she supports Kavanaugh is a good start – as are the many local letters that have focused their appeals on both Senators Collins and Murkowski.

However, the public sentiment has to be overwhelming to be effective. In the landmark Supreme Court decision on gay marriage in 2015, last year's legislative fight around repealing the Affordable Care Act, and the protests against the Trump Administration's family separation policy earlier this summer, it was the public outcry, the mass protests, that made the difference.

In each of those fights, large rallies across the country and persistent protest ultimately pushed public leaders to do the right thing. Democrats are going to need to see more from the public, though, to sway lawmakers against Kavanaugh. The National Day of Action on Women's Equality Day last week made a few local headlines but was drowned out at the national level for the most part by news around the passing of Senator John McCain. More protests and actions are planned around the confirmation hearings, but if they're not massive, they'll do little to convince wavering senators.

Make no mistake: it's an uphill battle to stop Kavanaugh from changing the balance of the Supreme Court for the next 40 years. Collins signaled that Kavanaugh may have won her support by describing Roe v. Wade as "settled law" in their private meeting despite some abortion opponents indicating the phrase doesn't mean much or prohibit a future Supreme Court from "unsettling" the law. With Murkowski saying she has yet to see anything she considers disqualifying in the Supreme Court nominee's record, the math only works for Democrats if they can convince these leaders – that public opinion is decidedly against Kavanaugh in their home states.

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