Will a justice delayed be a justice denied?

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What happens if Kavanaugh's accuser does not attend hearing?

Josh Holmes and Mary Anne Marsh debate the politics of the Kavanaugh hearing.

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On the roster: Will a justice delayed be a justice denied? - Time Out: ‘The darndest thing’ - Poll Check: Revenge of the likely voters - RNC memo warns: ‘Red wave’ claims create false hopes - Inside job

WILL A JUSTICE DELAYED BE A JUSTICE DENIED?
Senate Democrats believe that if they can push the vote on a replacement for former Justice Anthony Kennedy past the November 6 election that they might win the Senate and force President Trump to nominate someone more moderate than Judge Brett Kavanaugh.

The catch is, though, that a Supreme Court vacancy on Election Day could make their chances of winning the Senate even more distant.

As it stands, Democrats have a modest but not far-fetched chance of flipping the Senate. If it’s a very good Democratic year the partisan wind may tip over Republican candidates in key Senate races like Arizona and Nevada while propping up vulnerable Democratic incumbents in states like Florida and Missouri. It seems more likely that Republicans will maintain their one-seat edge or maybe even expand, but you never know in a climate as changeable as this one.

So one can understand how Democrats might hope that they could to the GOP what Republicans did to them in 2016: Blockade the nominee until a change of party.

But there’s a lot that makes this situation different from Senate Majority Leader Mitch McConnell’s defeat of Judge Merrick Garland.

Most Senate Republicans are eager for a vote on Kavanaugh and are accordingly eager to hold a hearing to examine an accusation of attempted rape against him from a high school party when the judge would have been 17. Senate Judiciary Chairman Chuck Grassley and others certainly want to show restraint and caution to avoid the appearance that the accuser Christine Blasey Ford is being dismissed. Ungentle handling of this matter would doom Kavanaugh’s nomination as sure as anything.

But aware of the same possibility as Democrats that the Senate might change hands, Republicans don’t want to waste any time in getting Kavanaugh confirmed if the proceedings can substantially lift the cloud from his reputation.

So if the ideal Republican outcome is Kavanaugh exonerated and confirmed before there is frost on the pumpkin, what is second best for the GOP?

The answer probably looks something like the White House pulling Kavanaugh’s nomination and either offering a new nominee or simply delaying the process until after the election.

The number of states in which a fired-up Democratic electorate would help the Blue Team’s chances of taking the Senate pales in comparison to places where the vacancy would make life harder for the Democrats. And we’re not just talking here about Missouri, North Dakota, Indiana and West Virginia. There’s also Nevada, Arizona, Florida and Texas.

This poses a real challenge to Senate Minority Leader Chuck Schumer. Blue-state liberals, especially those thinking about 2020 presidential runs, will want to use every procedural and public relations tool at their disposal to delay the vote, even if the charges against Kavanaugh don’t grow in credence.

But that won’t be good for a lot of senators trying desperately to hold on.

That brings us to the second best outcome for Democrats which is that after dragging the proceedings out for a couple of more weeks they lose the fight. In this scenario, Kavanaugh, facing a charge that can never conclusively be proven nor disproven, is confirmed amid lots of recriminations and the anxiety of some moderate Republican senators. Under this scenario there is no vacancy but there still would be a considerable intensifier for Democratic voters.

Under this scenario Democrats would also hope that intemperate voices on the right increasingly seek to dismiss the claims out of hand. This would be helpful to Democrats not just for the opportunity to gross out female voters already feeling icky about the GOP but also to intensify Republican infighting on the subject.

But all of this depends on what will be said and what really happened nearly 40 years ago.

Buckle up. 

THE RULEBOOK: PERFECTLY IMPERFECT
“The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan.” – Alexander Hamilton, Federalist No. 21

TIME OUT: ‘THE DARNDEST THING’
History: “On this day in 1973, future President Jimmy Carter files a report with the National Investigations Committee on Aerial Phenomena (NICAP), claiming he had seen an Unidentified Flying Object (UFO) in October 1969. During the presidential campaign of 1976, Democratic challenger Carter was forthcoming about his belief that he had seen a UFO. He described waiting outside for a Lion’s Club Meeting in Leary, Georgia, to begin, at about 7:30 p.m., when he spotted what he called ‘the darndest thing I’ve ever seen’ in the sky. Carter, as well as 10 to 12 other people who witnessed the same event, described the object as ‘very bright [with] changing colors and about the size of the moon.’ … He later told a reporter that, after the experience, he vowed never again to ridicule anyone who claimed to have seen a UFO. During the presidential campaign of 1976, Carter promised that, if elected president, he would encourage the government release ‘every piece of information’ about UFOs available to the public and to scientists.”
 
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SCOREBOARD
Trump job performance 
Average approval: 38.8 percent
Average disapproval: 54.2 percent
Net Score: -15.4 points
Change from one week ago: up 0.4 points
[Average includes: Gallup: 38% approve - 56% disapprove; CNN: 37% approve - 57% disapprove; Quinnipiac University: 38% approve - 54% disapprove; NPR/Marist: 38% approve - 54% disapprove; Grinnell College/Selzer: 43% approve - 50% disapprove.]

Control of House
Republican average: 39.8 percent
Democratic average: 50.2 percent
Advantage: Democrats plus 10.4 points
Change from one week ago: Democratic advantage up 1.2 points
[Average includes: CNN: 52% Dems - 42% GOP; Quinnipiac University: 52% Dems - 38% GOP; NPR/Marist: 50% Dems - 38% GOP; Grinnell College/Selzer: 45% Dems - 43% GOP; ABC/WaPo: 52% Dems - 38% GOP.]

POLL CHECK: REVENGE OF THE LIKELY VOTERS 
A slew of new polls from races across the country show signs of an electorate ready to shake itself out. Much of this has to do with pollsters tightening their requirements and limiting their samples to likely voters. Now what is a likely voter to one polling entity is different than what that term means to another, but as we get into the fall all pollsters worth their salt will adopt a model that focuses on those voters most likely to cast ballots. As you’ll see below that can be good or bad for a candidate depending on how they match up with the partisan competition of their state or district.

Cruz holds lead in Texas Senate Race - Quinnipiac University: “Republican incumbent Sen. Ted Cruz has a 54 - 45 percent likely voter lead over U.S. Rep. Beto O'Rourke, his Democratic challenger, in the Texas Senate race, according to a Quinnipiac University Poll released today. This is the first survey of likely voters in this race by the independent Quinnipiac University Poll, and cannot be compared to earlier surveys of registered voters. Among Texas likely voters who choose a candidate, 93 percent say their mind is made up. That includes 94 percent of Cruz backers and 92 percent of O'Rourke backers. … Republicans back Cruz 94 - 6 percent, as Democrats go to O'Rourke 94 - 4 percent. Independent voters are divided with 51 percent for O'Rourke and 47 percent for Cruz. Texas likely voters approve 53 - 44 percent of the job Cruz is doing and give him a 52 - 43 percent favorability rating.”

Baldwin pulls ahead of Vukmir in Wisconsin Senate race - Milwaukee Journal Sentinel: “Democratic U.S. Sen. Tammy Baldwin has seized command in her race against Republican challenger Leah Vukmir, according to Tuesday's Marquette University Law School Poll. Among likely voters, Baldwin led Vukmir by 53 percent to 42 percent. Baldwin, who is in her first term, held a 2 point advantage in August. Vukmir was supported by 86 percent of Republicans and Baldwin was backed by 97 percent of Democrats. Among independents, Baldwin led by 54-38. Baldwin was viewed favorably by 48 percent and unfavorably by 40 percent, while Vukmir was underwater, viewed favorably by 26 percent and unfavorably by 38 percent. Fifty percent said the state was headed in the right direction while 47 percent said it was headed in the wrong direction.”

Klobuchar and Smith lead Minnesota Senate races - [Minneapolis] Star Tribune: “U.S. Sen. Amy Klobuchar has an imposing lead over Republican challenger Jim Newberger, while U.S. Sen. Tina Smith holds a much smaller advantage over state Sen. Karin Housley in the special election race for Minnesota’s other U.S. Senate seat. A new Star Tribune/MPR News Minnesota Poll found that Smith, appointed by DFL Gov. Mark Dayton after Al Frankenresigned in January, leads Housley by 44 to 37 percent. But the contest could still be up for grabs: 15 percent of likely voters are undecided. The poll’s most startling disparity was the difference in young voters’ preferences: 64 percent in the 18-34 age group said they would vote for Smith.”

Dems keep advantage in Arizona, Tennessee Senate races - CNN: “Democrats hold an advantage in two states that are critical to the party's chances of taking control of the US Senate, according to new CNN polls conducted by SSRS. The surveys show Democratic Rep.Kyrsten Sinema and former Gov. Phil Bredesen leading their Republican opponents for open seats Arizona and Tennessee, where sitting Republican senators are retiring. In Arizona, Sinema tops Republican Rep. Martha McSally by 7 points, 50% to 43% among likely voters, while in Tennessee, Bredesen holds a 5-point edge over Rep. Marsha Blackburn, 50% to 45% among likely voters there. Roughly 1 in 6 voters in each state say there's a chance they'll change their mind before Election Day. Likely voters are a subset of registered voters in the poll and include those most likely to turn out based on a combination of self-reported intention to vote, interest in the election and past voting behavior. Arizona and Tennessee are two of the four states where Democrats are widely seen as having at least some chance of picking up Senate seats in November's election.”

GOP candidate holds small lead in California House race - Monmouth University: “Republican Young Kim holds a slight edge over Democrat Gil Cisneros in the open seat contest for California’s 39th Congressional District, according to the Monmouth University Poll.  More voters give a favorable rating to the GOP candidate and see her as in touch with district residents than say the same about the Democrat. These findings, coupled with lower turnout among Democratic-leaning voter blocs, offset some of the fundamental advantages Cisneros might otherwise have on key issues. Kim is supported by 46% and Cisneros is supported by 42% of all potential voters – that is voters who have participated in an election since 2010 or have newly registered to vote (a group that represents about 85% of all registered voters in the district). Another 12% are undecided.  The Republican’s edge grows, though, when applying two different likely voter models.”

Hot in South Florida - NYT: “Carlos Curbelo, the Republican candidate, has a slight edge in [the NYT/Siena College] poll [with 47% to his opponent’s, Debbie Mucarsel-Powell, 44%]. Mucarsel-Powell is an immigrant from Ecuador who moved to the U.S. as a teenager. [She holds a] 19% favorable rating; 13% unfavorable; 68% don’t know … Carlos Curbelo is the current representative and a Cuban-American. [He holds a] 52% favorable rating; 27% unfavorable; 21% don’t know… This strongly Hispanic South Florida district was created in 2012 and encompasses most of southern Miami-Dade County, Key West and all three of Florida's national parks. … Mr. Curbelo has also distanced himself from the president, calling the accumulation of Trump-related scandals a ‘sad chapter in our country’s politics.’ Ms. Mucarsel-Powell has said she was inspired to run for Congress the day that Mr. Curbelo voted to repeal the Affordable Care Act.”

RNC MEMO WARNS: ‘RED WAVE’ CLAIMS CREATE FALSE HOPES  
Bloomberg: “If overconfident Republican voters stay home, Democrats could win a landslide. The report urges GOP officials to yank their voters back to reality… The president instead has delivered the opposite message. At rallies and on Twitter, Trump has claimed that—contrary to conventional wisdom and polling—Republicans might actually increase their margin in November. The internal RNC study finds that complacency among GOP voters is tied directly to their trust in the president—and their distrust of traditional polling. ‘While a significant part of that lack of intensity is undoubtedly due to these voters’ sentiments toward the President, it may also be partly because they don’t believe there is anything at stake in this election,’ the authors write. ‘Put simply, they don’t believe that Democrats will win the House. (Why should they believe the same prognosticators who told them that Hillary was going to be elected President?)’”

It should be hard for Dem incumbents to lose in the Senate… or is it? -  FiveThirtyEight:“The GOP didn’t lose any of its own Senate seats in 1994, 2010 or 2014, for example. Democrats didn’t lose any of their own seats in 2006 or 2008. Between these five election cycles, the ‘waving’ party went undefeated in defending its Senate seats. This year, however, we have a seeming contradiction: The polls are pointing toward a wave in the House, with an average projected gain of 35 to 40 seats for Democrats and a popular vote win of 8 to 10 points. And yet, Democrats are at risk of losing several of their own Senate seats, which could offset any gains they may make among GOP-held seats and make it much harder for Democrats to take control of the Senate. One way out of the dilemma for Democrats is if their incumbents in the Senate aren’t in quite as much trouble as the polls show — and our fundamentals calculation suggests that could be the case. Below is a comparison of polls and fundamentals in each seat held be an elected Democratic incumbent. Note that elected incumbent excludes appointed incumbents such as Tina Smith in the Minnesota special election; we’ll deal with her race in the next installment.”

Kraushaar: ‘The Five Stages of Political Grief’ - National Journal: “With the likelihood of a sizable Democratic wave approaching, at-risk campaigns are starting to show the public how nervous they are about the midterm elections. As a political analyst, I’m a firm believer in following candidates’ actions—rather than campaign spin—in assessing the trajectory of an individual race. These are the five biggest warning signs to determine if a candidate is heading to defeat. 1. Apologizing in a campaign ad. This is one of the most desperate actions a campaign can take. … 2. Admitting you’re going to change. … 3. Claiming all politics is still local. The reality is Tip O’Neill’s maxim no longer applies: All local politics is now national. … 4. Denying the polling. … 5. Anger about lack of outside support.”
 
Brother against brother in race to replace Ryan - Fox News: “The race to replace Rep. Paul Ryan in Wisconsin just got even more heated as a Republican group released a new attack ad targeting the Democratic candidate – using his own brother. In the ad, James Bryce discusses his brother Randy’s criminal record and past comments about police officers. Randy is a Democrat who faces Republican Bryan Steil in Wisconsin’s 1st congressional district. James Bryce, who has been a police officer for more than 23 years, talks about an increase in attacks on law enforcement officials in recent years. The ad was released by the Congressional Leadership Fund (CLF), a super PAC with ties to Ryan.

Tester campaigns on love of hunting, hasn't had license in 6 years - Fox News: “Montana Sen. Jon Tester, a red state Democrat running for re-election in one of the closest Senate contests this year, has campaigned as a big hunting proponent, sending out mailers to voters that show him in hunting gear with his gun in hand. ‘As we gear up for hunting season, Montanans know that hunting isn’t just a sport – it feeds our families, and it creates lifelong memories with our kids and grandkids,’ Tester says in the campaign flier. ‘Montanans are lucky to have some of the best access, longest seasons and greatest hunting in the world.’ But according to Montana Fish, Wildlife and Parks records reviewed by Fox News, Tester hasn’t had a hunting license in six years. He last had one in 2012 – the same year he was last on the ballot.”

PLAY-BY-PLAY
Senate backs bill to avert shutdown, boost military spending - AP

Early presidential television ads begin in Iowa - Des Moines Register

Jonah Goldberg: ‘Socialism Is So Hot Right Now: An explanation for the enduring power of very bad ideas’ - Commentary

Stamps: What are they? How do they work? - WTOP

AUDIBLE: BUSH NOT SHAKEN 
“Laura and I have known and respected Brett Kavanaugh for decades, and we stand by our comments the night Judge Kavanaugh was nominated.” – Former President George W. Bush confirms and reaffirms his support for Judge Brett Kavanaugh.

FROM THE BLEACHERS
“I ordered ‘Every Man A King’ from Amazon and received same but did not receive a signed book plate. Could you possibly send me one; it would be greatly appreciated.” – John Good, Alexandria, Va.

[Ed. note: First, sorry for not replying sooner. We had a Halftime Report service interruption Friday and Monday because hurricane coverage demands knocked us out. We’re taking steps to make sure that we can avoid doing so again. As for the book, first, thanks, Mr. Good, to you and thousands of others who are helping to make the launch a success. I am blown away by the support. If you were one of those who took advantage of the pre-order offer to get a signed bookplate, it will arrive separately. For those who didn’t, we are coming up with a way to get copies signed and will announce in Wednesday’s edition of “Perino & Stirewalt: I’ll Tell You What.” Stay tuned!]

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INSIDE JOB
Boston Globe: “Most come up empty-handed when trying their shot at a KeyMaster game, but one man in Salem, New Hampshire, on Friday managed to evade any loss by using a method that has now captured the attention of police: having a toddler climb into the game and pull out various prizes. In a video posted by the Salem Police Department, the man — who officers are now looking to identify — is shown having a female toddler climb into the bottom portion of the game where the prizes are dropped, and then having her hand down the stolen items. The incident took place at the Mall of Rockingham Park.”

AND NOW, A WORD ABOUT CHARLES…
“Charles Krauthammer was my father. Writing that sentence in the past tense is still a shock to me, and it evokes a sadness far too deep to express in words. But it also evokes in me a sense of determination and resolve: to ensure that his life’s work—his words, his ideas, his extraordinary contributions to the political life of our country—will continue to live on. …  No project I have ever undertaken has held more meaning for me. As my father’s son, I am of course no impartial observer. But I know I am far from alone in believing that my father’s voice was a uniquely insightful and powerful one in our national discourse. I truly believe that the world will be a better place the longer his voice, and its echoes, are heard and read.” – Daniel Krauthammer, the son of Charles Krauthammer (1950-2018), announcing his father’s final book, “The Point of It All: A Lifetime of Great Loves and Endeavors.”

Chris Stirewalt is the politics editor for Fox News. Brianna McClelland contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.