Thats bad enough for the party in the near term. But its worse in the medium run. This years losses mean that Democrats will have a very hard time retaking the Senate in 2020.
Before the election, FiveThirtyEights Nathaniel Rakich noted that with a 52-48 Senate in Republicans favor, Democrats in 2020 would need to hold on to Doug Joness seat in Alabama, defeat both Susan Collins in Maine and Cory Gardner in Colorado, and pick up a seat in a red state by ousting at least one of Thom Tillis in North Carolina, Joni Ernst in Iowa, Jon Kyl in Arizona (whos not seeking reelection), or David Perdue in Georgia. (Theyd need one less if they also take the presidency.)
Trump, Kavanaugh impeachment speculation kicks up after Dems House takeover
In the worst-case scenario for Democrats, a 54-46 Senate, theyd need to flip five seats and hold on to Alabama. A likely path might involve flipping Maine, Colorado, North Carolina, Iowa, and Arizona, in a year thats not likely to be as Democratic-leaning as 2018. And thats assuming that Jones holds on in Alabama, as do New Hampshires Jeanne Shaheen, Virginias Mark Warner, and Michigans Gary Peters. Some of them are likely to hold on, but Jones at least is likely to fall, and Shaheen and Warner came close in 2014. Putting it all together, a Democratic flip sounds unlikely.
With Republican Gains in Senate, Social Conservatives Tighten Their Grip
The upshot is clear: Democrats will probably remain in the minority in the Senate until at least 2022. That failure will have grave consequences not just for the prospects of future progressive legislation, like Medicare-for-all or action on climate change, but also for the next few decades of the federal judiciary.
Analysis | The Trailer: It did, in fact, come down to turnout
The primary consequence of Democrats failure in the Senate, in the near term, is that theyll be unable to stop President Trumps judicial appointments. Theyll have fewer votes to resist with than they did for Brett Kavanaugh.
In Iowa, voters re-elected a governor who signed a bill this year that sought to ban abortion after a fetal heartbeat could be detected — a move intended to provoke a legal challenge to Roe at the Supreme Court. (A federal court later put the law on hold.) The newly elected Republican governors in Florida and Ohio are opponents of abortion rights and defeated candidates who supported protecting Roe.
That could help Republicans solidify or expand their dominance on the Supreme Court. Clarence Thomas is relatively young (only 70), and he could time his retirement for next year or 2020 to ensure a Republican president and Senate determine his successor. And while Ruth Bader Ginsburg, 85 and a two-time cancer survivor, and Stephen Breyer, 80, are unlikely to retire under Trump, Democrats should pray for their continued good health, especially given news that Ginsburg fell, broke three ribs, and was admitted to George Washington University Hospital on Thursday morning.
In West Virginia and Alabama, voters approved ballot initiatives that would essentially ban abortion, and one that even gives rights to a fetus, in the event that a new constitutional challenge to Roe succeeds at the Supreme Court — an outcome that activists on both sides of the debate believe is possible since the confirmation of Justice Brett M. Kavanaugh tilted the court decidedly to the right.
Then there are the lower courts. There are currently 122 vacancies on district courts and circuit courts of appeals for Trump to fill, out of 856 total. As analysis from the team at Ballotpedia shows, the aging of the federal judiciary means that by the end of 2020, slightly more than half of district and appeals court judgeships will be a) vacant, b) filled by Trump, or c) held by a judge old enough to take senior status and semi-retire, opening up the seat for another judge.
We are so much stronger than we were before, said Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group that led an extensive turnout operation this year in states like North Dakota, Indiana and Missouri, where incumbent Democratic senators were defeated by anti-abortion Republicans. We win when we go back to our roots, she added.
Not all of those judges will take senior status, of course. But some will. And regardless of how many do, the core point remains that Trump will have considerable power to use his Republican Senate majority, and the 50-vote threshold that Democrats established for lower-court judgeships in 2013, to move the lower courts solidly to the right over the next two years.
Thats the situation for 2019 and 2020. With the Senate mostly out of contention in 2020, the picture only gets worse for Democrats.
The Faith & Freedom Coalition, the Christian conservative group founded by Ralph Reed, which had an extensive ground game this cycle, found in its data that evangelicals made up more than a quarter of the midterm electorate, and about 80 percent of them voted Republican. In 2016, 81 percent of white evangelicals voted for Mr. Trump.
If a Democrat defeats Trump for reelection in 2020 but Democrats also fail to retake the Senate — an outcome thats especially likely if Democrats fall down to 46 seats this year after Arizona and Florida are counted — that Democratic president would not be able to enact much of any legislation of consequence in her first two years in office. Given her likely losses in the 2022 midterms, its unlikely shed be able to pass major bills for her whole first term. Trump broke the trend due to a highly favorable map, but generally, its rare for the presidents party to gain seats in the Senate during a midterm. The last time it happened was 2002, in the wake of 9/11, and the last time before that was 1970.
So dont expect President Kamala Harris or Elizabeth Warren or Bernie Sanders to pass a Medicare-for-all bill, or a job guarantee, or even DC statehood, automatic voter registration, or repairs to the Voting Rights Act. Without control of the Senate in 2021, all those initiatives would be dead in the water.
In the North Dakota Senate race — one of three in which Republicans prevailed by defeating a Democratic incumbent who supported abortion rights — the winner, Representative Kevin Cramer, had cut an ad against late-term abortions featuring his pregnant daughter and brought his newborn grandchild onstage for his victory speech.
Trumps hypothetical Democratic successor in 2021 could also be prevented from appointing and confirming any new members of the US Supreme Court. Before the 2016 election, Sens. Ted Cruz, Richard Burr, and John McCain promised that should Hillary Clinton win, theyd favor blocking any and all nominees she put forward for Antonin Scalias vacant Supreme Court seat. Unless political polarization and constitutional hardball somehow abates, rather than worsens, by 2021, the Republican caucus is quite likely to adopt a similar strategy then.
And if Trump is reelected in 2020, Democratic failure in the Senate would carry graver costs for Democrats. Ginsburg will turn 92 the first year of Trumps second term, and 96 in 2025, if she decided to wait out Trump. Breyer, who has been in better health but as a man has a lower life expectancy, will be 86 and 90, respectively.
Social conservatives said on Wednesday they were elated by the victories in the Senate and in the governors races, which they believe provide openings to push their agenda in the judiciary and the states even if a Democratic-led House ties up legislative priorities of President Trump and Washington Republicans.
Its also entirely possible that a Trump reelection in 2020 would coincide with a Republican retaking of the House of Representatives. That, combined with a Republican hold on the Senate and Trumps reelection, would enable new rounds of tax cuts, Medicaid cuts, attempts at Obamacare repeal, and more.
Democrats used to rely heavily on seats in red states — not just swing states like Ohio or Iowa, but deep-red states like the Dakotas and Arkansas — for their Senate majority. They dont anymore, and the Senate map looks increasingly identical to the presidential map. 2016 was the first year in the history of direct Senate elections that every states Senate election outcome matched its presidential outcome. That can mean only bad things for Democrats viability in the Senate in the medium to long run.
President Trump, who has already filled vacancies on the federal bench at a faster pace than most previous presidents, and cemented a conservative majority on the Supreme Court with two appointments so far, is now in a stronger position to put forward even more conservative judicial nominees if he chooses to.
Democrats losses in 2018 were concentrated overwhelmingly in deep-red states. Republicans flipped Missouri, Indiana, and North Dakota, none of which are normally competitive for Democrats in national elections (flukes like Obamas 2008 win in Indiana aside), but where Democrats could compete because of popular incumbents from a less polarized age. Similar things happened in 2010 and 2014 in states like Arkansas, North Dakota, South Dakota, Louisiana, and Alaska, and the 2010 losses werent reversed in 2016; indeed, in most cases, like Arkansas and North Dakota, Democrats didnt even really try to reverse the losses in 2016.
Heres one way to think about what happened on Tuesday: In January 2005, Democrats had even fewer seats than theyre likely to have in 2019, with only 45. But they had 11 members from states that Mitt Romney would later win. Assuming Democratic losses in Florida and Arizona, Democrats will have only three members from Romney states: Jon Tester in Montana, Joe Manchin in West Virginia, and Doug Jones in Alabama. And Jones is likely to lose in 2020.
Im using Romney states here because he and Obama split up the states pretty evenly (26 for Obama, 24 for Romney), but you can do a similar analysis using Bush/Kerry states, Obama/McCain states, or even Clinton/Trump states, though Senate Democrats continued strength in the Midwest changes the latter analysis a bit.
The point is, Democrats look increasingly uncompetitive for the Senate in states that arent at least purple-ish. That doesnt necessarily have to doom them for Senate control in the long term. There are enough Republican senators from states that Obama won in 2012 — Marco Rubio, Pat Toomey, Chuck Grassley, Cory Gardner, Susan Collins, Ron Johnson, Rob Portman — such that replacing all of them would enable Democrats to retake the body.
But the fact that the Senate map is increasingly resembling the presidential map is bad news for Democrats long-term. The Senate has a profound small-state bias, and small states (and rural states) are likelier to be Republican-leaning than large states; that was even more true before Trump flipped some large Midwestern states like Wisconsin, Michigan, and Pennsylvania. Democrats can win a minority of states and win the presidential popular vote, or even the Electoral College, but they cant win a minority of states and keep the Senate.
Moreover, Democrats would be forced to spend on more expensive races in large states rather than relatively cheap races in places like the Dakotas, where they used to be able to win.
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Nancy Pelosi rallies to Special Counsel Robert Muellers defense, demands Matt Whitakers recusal from Russia probe.
With Democrats set to reclaim control of the House in January and President Trump already infuriating them with the forced resignation of Attorney General Jeff Sessions, speculation is rampant over whether they will use that power to pursue impeachment against the president — or even Supreme Court Justice Brett Kavanaugh.
House Minority Leader Nancy Pelosi, who wants to be speaker, has pushed back on pressure from the base to pursue impeachment, saying earlier this week "that's not what our caucus is about" even as Democratic lawmakers make clear they will pursue other investigations of the administration.
Billionaire Tom Steyer, who has floated the possibility of a 2020 presidential run and pumped millions into supporting Democratic congressional candidates, told CNN on Wednesday that House Democrats must confront what he called a “lawless” president.
He renewed his call for impeachment proceedings. Steyer months ago launched the “NeedtoImpeach.com” website and is one of the most prominent liberal advocates for ousting Trump.
Meanwhile, Democrats who called for further investigation into Supreme Court Justice Brett Kavanaugh over allegations of sexual misconduct (which he has denied) now have the power to pursue just that.
On Wednesday, The Federalist reported that House Judiciary Committee ranking member Rep. Jerrold Nadler, D-N.Y., was heard on a train to D.C. discussing going after Kavanaugh because “there’s a real indication that Kavanaugh committed perjury” during his confirmation hearings. However, the outlet reports that Nadler, who would be in line to take over the judiciary committee which handles impeachments, conceded it might not result in the best political outcome:
“The worst-case scenario — or best case depending on your point of view — you prove he committed perjury, about a terrible subject and the Judicial Conference recommends you impeach him. So the president appoints someone just as bad.”
On Trump, Nadler reportedly said that much of what they intend to do would be “depending on what [FBI Special Counsel Robert] Mueller finds.” But he said that Russia investigations would be under a broad umbrella of holding Trump “accountable” since it’s a more palatable argument than impeachment, but that they would be going “all-in.”
White House Counselor Kellyanne Conway cited the reported Nadler comments while discussing the “red-hot tone” in Washington during a “Fox & Friends” interview Thursday.
“You want to talk about red-hot tone … it’s dangerous,” she said, citing the Nadler discussion and other examples.
Nadler also hinted at how Democrats would use their investigative power in his public statement on the forced resignation of Attorney General Sessions Wednesday, in which he warned that Trump “cannot take such action if it is determined that it is for the purposes of subverting the rule of law and obstructing justice.”
“The American people like and respect fighters, and they have elected us to put a check on the executive branch,” said Rep. Ro Khanna, D-Calif., who, according to The Washington Post said he has been talking to his colleagues about pushing ahead with investigations of Trump, starting with his tax returns.
But Pelosi has urged caution on pushing impeachment — instead calling for Democrats to focus on issues such as taxes and health care. In a press conference Wednesday, she said Democrats wouldn’t go looking for a fight, but would also investigate when they deemed it necessary.
“We do not intend to abandon or relinquish our responsibility — Article I, the first branch of government and our responsibilities for accountability, for oversight and the rest. This doesn't mean we go looking for a fight, but it means that if we see a need to go forward, we will,” she said.
Any impeachment push in the House would not only carry political risks but face little chance of succeeding as long as the president's party stands by him — given that the Senate, where Republicans padded their majority, has the power to convict or acquit.
However, she has said that unearthing Trump's personal tax returns would be "one of the first things we'd do," in an interview with The San Francisco Chronicle, calling it the "easiest thing in the world" to obtain them using statutory authority granted to congressional committees under the Internal Revenue Service code.
Trump has warned Democrats that he could fire back if they pursue such a tactic, as the Senate could start investigations of Democrats.
“They can play that game, but we can play better because we have a thing called the United States Senate and a lot of very questionable things were done, between leaks of classified information and many other elements that should not have taken place,” he said.