The Senate Math Behind Brett Kavanaugh’s Confirmation

Given that Republicans hold a slim 51-49 majority in the Senate and a few key moderates in both parties could decide the fate of Brett Kavanaugh’s nomination to the Supreme Court, here are a few facts and possibilities about his confirmation process.

(1) Kavanaugh needs a simple majority of votes to be confirmed, not a specific number of them. With a handful of exceptions, most up-or-down votes in the Senate are determined by 50-percent-plus-1 senator voting. If all 100 senators vote, Kavanaugh needs 50 of them voting yes, plus the vice president. If 99 vote, he needs 50 of them voting yes. If 98 vote, he needs 49 of them voting yes, plus the vice president. If 93 vote, he needs 47; and so on. There is no fixed threshold of votes Kavanaugh needs to be confirmed—there is only a percentage standard he must meet.

(2) The vice president breaks all ties, not just 50-50 ties. Article 1, Section 3 of the Constitution: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” There are no other conditions provided. If an even number of senators vote and there is a tie, the vice president can vote to break it. This even number can be less than 100. For example, Vice President Mike Pence voted earlier this year (in January and February) to break a 49-49 tie on a presidential nomination.

(3) If all 100 senators vote, Kavanaugh could lose one Republican and still be confirmed. This is contingent on the participation of Sen. John McCain, who has been away from the Senate the entire year receiving cancer treatment, or a hypothetical Republican selected by Arizona’s Republican governor to replace him. The conventional wisdom is that Maine senator Susan Collins and Alaska senator Lisa Murkowski are the most likely candidates to vote no on Kavanaugh. There also appears to be a slim chance that Kentucky senator Rand Paul, who the Associated Press reported is privately a Kavanaugh critic, could flip. If one of these three voted against the vote would be 50-50 (assuming no Democrats cross the aisle) and Pence would see Kavanaugh’s nomination through. If two of the three flip (and no Democrats defect), the vote would be 49-51 and the nomination would fail.

(4) If only 99 senators vote, then Republicans cannot afford to lose a single one of their own, assuming that all 49 Democrats stick together to oppose. In this instance, a vote purely on partisan lines would be 50-49 for Kavanaugh. One Republican flipping would make it 49-50. (One Republican being a troll and voting “present” would make it 49-49-1, and Pence would come to the rescue.)

(5) There is the potential that one or more moderate Democrats facing reelection this year will support Kavanaugh. Three red-state Democrats on the ballot in 2018—Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp, and West Virginia’s Joe Manchin—voted for Neil Gorsuch last year. South Carolina Republican Lindsey Graham told reporters on Tuesday that even more Democrats could vote yes on Kavanaugh, given the political season, as Jenna Lifhits reported. That said, it is difficult to imagine one or more of Collins, Murkowski, and Paul sinking Kavanaugh’s confirmation only for a necessary number of Democrats to jump ranks and keep it afloat. But it is a numerical possibility.

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