July 22, 2019

The Cost of Having a Conscience in the Senate

by Without Fail

Background show artwork for Without Fail
As a Democrat from a red state, Senator Heidi Heitkamp built a reputation for her willingness to buck party pressure and reach across the aisle. But when Brett Kavanaugh was nominated to the Supreme Court, she found herself facing a decision between her principles and her political fate.

Where to Listen


ALEX BLUMBERG: From Gimlet, I’m Alex Blumberg and this is Without Fail, the show where I talk with artists, athletes, entrepreneurs, visionaries of all kinds, about their successes and their failures, and what they’ve learned from both.

Just a quick warning before we get started… there is some discussion of sexual assault in this episode. So if that subject can be difficult for you, you may want to skip this episode, or take care while listening. 

ARCHIVAL VICE PRESIDENT MIKE PENCE: As a reminder to our guests in the galleries, expressions of approval or disapproval...are not permitted in the senate galleries...

ALEX BLUMBERG: This is tape from October of 2018, when the United States senate was at work on a Saturday. They were holding the confirmation vote for Brett Kavanaugh as Supreme Court justice. 

VICE PRESIDENT MIKE PENCE: The clerk will call the roll.

CLERK: Mr. Alexander…

PROTESTORS: I am a mother and I am a patriot!... I do not consent!

VICE PRESIDENT MIKE PENCE: [gavel] The sergeant at arms will restore order in the gallery...

PROTESTORS: I do not consent!...

ALEX BLUMBERG: During the confirmation hearings, of course, allegations surfaced that Kavanaugh had sexually assaulted a professor named Christine Blasey Ford when the two were in high school. Republicans called it a witch hunt, a last-ditch attempt to derail the confirmation of another conservative judge to the supreme court. Democrats said that the way the Republicans handled the allegations, was demeaning to sexual assault survivors across the country.

VICE PRESIDENT MIKE PENCE: The clerk may continue.

CLERK: Ms. Baldwin…

PROTESTOR: I do not consent! 

CLERK: Mr. Barrasso… Mr. Bennet...

ALEX BLUMBERG: On this day in the senate chamber, most of the votes were predictable along party lines. Republicans for the confirmation, Democrats against. But there were a few senators for whom this vote was not clear cut, it wasn’t a straight partisan choice. And there was one senator in particular — a democrat from a red state — who found herself in a very peculiar predicament regarding this vote. No matter which way she voted she was going to let somebody down, either a bunch of her constituents, or a bunch of people from her own party. And in the end, she did something that politicians almost never do — she ignored both those groups. And this came with serious political consequences. 

CLERK: Mr. Hatch…Mr Heinrich…Ms. Heitkamp...

ALEX BLUMBERG: That senator - Heidi Heitkamp, a one-term democratic senator from North Dakota - is my guest today. And I talked to her about that vote that may have cost her her senate seat. And why she ended up making it anyway, even though she knew the consequences. 

Heitkamp told me that even when she was first elected to the senate, in 2012, she was a rarity: a Democrat from a deeply red state. She’d made a name for herself as the attorney general of North Dakota in the 1990s, but she’d lost the race for Governor in 2000, and had taken a decade off from politics. The senate race in 2012 was her first time wading back into political waters.

ALEX BLUMBERG: Can you go back to the night of your election in 2012, and talk to me about what that night was like? What were you thinking and what were you feeling?

HEIDI HEITKAMP: Well, we went into election night on 2012 not really knowing what was gonna happen. And we were just basically following the returns as they went across the state, when we looked at polling, we knew that if the president, and by this I mean President Obama, was able to keep the gap at about 22 -- I mean, lose the race by 22 in North Dakota, I could get elected.

ALEX BLUMBERG: If the President could keep the gap at 22. Is that what you said?

HEIDI HEITKAMP: Yeah, 22 points.

ALEX BLUMBERG: Explain what that means. Keep the gap between what and what?

HEIDI HEITKAMP: Well, if the president could lose by only 22 points, I could win. Anytime in our tracking polls that the president started losing the race in North Dakota by over 22, my numbers would drop to the point where I could not get elected in North Dakota. 

ALEX BLUMBERG: Got it. You felt like, "I could outdo the president.”

HEIDI HEITKAMP: That's exactly right. I can outdo President Obama in North Dakota. 

HEIDI HEITKAMP: And I did, actually. Now understand, it was an incredibly close race.


HEIDI HEITKAMP: You know, I only won by 3,000 votes.

ALEX BLUMBERG: 3,000 total votes.

HEIDI HEITKAMP: Yeah, I used to joke that, you know, when I came to Washington, everybody was very curious because they just kind of thought I was a unicorn. You know, someone from a rural state who had won in a place where Obama, you know, had a 20-point gap.

ALEX BLUMBERG: I'm broadly curious though, like, just in terms of, like, where you saw yourself on the political spectrum.

HEIDI HEITKAMP: I mean, I really see myself kind of constitutionally a pragmatist and a moderate.

ALEX BLUMBERG: And how unusual... how unusual was that in Congress in general?

HEIDI HEITKAMP: I would say maybe 15 to 20 senators I would describe as pragmatists.

ALEX BLUMBERG: And after her election, Heitkamp started to getting to know those other moderate pragmatists in the chamber. Democrats like Joe Manchin from West Virginia, and Republicans, like Susan Collins from Maine and Lisa Murkowski from Alaska. 

HEIDI HEITKAMP: We tend to be more fact-based and not ideological.


HEIDI HEITKAMP: That doesn't mean we're without principles, but I think it definitely means that -- that we're not there to beat a drum for an ideology, we're there to get things done. And I think what you'd see is frequently when government shuts down, that group tends to meet. When -- when things happen where we reach an impasse, they can play a really critical and important role. And probably the best example of that was the '13 shutdown. 

ARCHIVAL NEWS ANCHOR: For the first time in 17 years, much of the federal government is shut down. Congress failed to agree on new funding before a midnight deadline...

HEIDI HEITKAMP: You know, the sabers are rattled and everybody's, you know, trying to make their points. And we're probably four or five days into this, I think the frustration of, of people who think that this is not the way to run the government were running pretty high. And Lisa and Susan pulled together a bunch of people, and we were able to forge the compromise that basically led to opening government up again. 

ALEX BLUMBERG: I'm curious though, as a -- as a person who's wired the way you are, what is it like to be in that scenario where, like, people on both sides seem like, it's this weird game of ideological chicken that's leading to the shutdown in the first place. What were you -- what was the conversation like amongst -- like, what were you and Susan Collins talking about? Did you ever go out and just be like, "Can you believe this crap?"

HEIDI HEITKAMP: [laughs] More times than I can count. You know, I think that the important thing to realize is that there is a -- a big piece of decision-making that everybody agrees on. And so I tend to be very willing to listen to both sides of an argument, and very willing to um, to compromise

ALEX BLUMBERG: And finding compromise was important to Heitkamp even if it meant bucking her own party. Like in early 2017, when newly-elected President Donald Trump nominated Judge Neil Gorsuch to the supreme court. So, a quick reminder on the context here: a year before that, in 2016, then-president Barack Obama had nominated Judge Merrick Garland to a vacant Supreme Court seat. But Senate Republicans, led by Majority Leader Mitch McConnell, stalled those confirmation hearings, for nearly a year, on the novel argument that the Senate shouldn’t hold a confirmation hearing during an election year. The effect of this was when Donald Trump took office, that space was still vacant, and he was able to instead nominate his pick for Supreme Court: Neil Gorsuch, a more conservative judge.

Senate Democrats tried to rally members of their caucus to stick together and block the vote. But that didn’t sit well with Heitkamp. She didn’t like it when McConnell held up the nomination of Garland, and she didn’t want the Democrats doing the same thing to Gorsuch. She wanted to make her decision based on Gorsuch’s judicial merits.

HEIDI HEITKAMP:  Is he qualified by temperament? Is he qualified by character? Is he qualified by intellect? You know, I think that anyone would be hard-pressed to say that Gorsuch did not pass those qualifications. Um, you may not agree with him, but he is a very capable jurist.

ALEX BLUMBERG: Right. But I can imagine a sense among your caucus, the Democratic caucus that, like, well turnabout's fair play here, Mitch. You held up our appointee and now we're gonna hold up yours or we're not gonna confirm yours or something like that. 

HEIDI HEITKAMP: Right, I mean the question is do you let two wrongs make a right? I don't think you do. And I also think that elections matter, and the President was entitled to that appointment barring a disqualifying event. 

ALEX BLUMBERG: Mhm. Was your vote to confirm Gorsuch, was that popular within your own caucus?


ALEX BLUMBERG: How did they make it clear to you that this was not a popular vote? Who -- were people pulling you aside and ...

HEIDI HEITKAMP: I think if you're looking for some story where someone came up and put their finger in my face, I mean that didn't happen very often.


HEIDI HEITKAMP: Um, it usually works where somebody stands up in a -- in a caucus and makes an impassioned plea looking directly at you for why you need to vote this way. 

ALEX BLUMBERG: Who -- somebody stood up, though, in a caucus meeting and, like, made a plea looking directly at you?


ALEX BLUMBERG: That happened? 


HEIDI HEITKAMP: There's usually about three or four of us that that, we're always, you know, the -- the ones that they wished to persuade. 


HEIDI HEITKAMP: And I won't tell you who those people were. But I usually sat back with them so it didn't matter. There was relief in company.


HEIDI HEITKAMP: But I think I always felt like I was in a position to say, "Look, I haven't played these games, you know? I haven't -- I haven't, uh, um, uh, said no for the sake of saying no. When I've said no it's with reason."

ALEX BLUMBERG: And back home in North Dakota, the decision to say no to her party, and yes to Gorsuch...it went over well. An editorial in the Bismarck Tribune said that Heitkamp’s vote to confirm Gorsuch added “to the argument that she does what’s best for North Dakota.” The rest of that year, Heitkamp continued to strike a balance between the president and her party — siding with Trump about half the time.

HEIDI HEITKAMP: If you're a lawyer, if you've ever argued a position, you know you basically have to have a theory of your case. And the theory of my case was that I'm a moderate pragmatist, um, much like much of North Dakota. That I will go and make a judgment not based on, you know, responsibilities, to my political party, but based on what I think is the right thing.

ALEX BLUMBERG: That was the theory anyway that she hoped would appeal to North Dakota voters. But in 2018, during her re-election, something would happen that would put that theory to the test. Someone actually. Brett Kavanaugh. That’s coming up after the break. 


ALEX BLUMBERG: Welcome back to Without Fail and my conversation with former Senator Heidi Heitkamp.

In 2018, Heitkamp was coming up on the end of her first term in the senate, and campaigning for re-election. And things in her state had changed. Since her last election in 2012, which remember she barely won, the percentage of North Dakotans who self-identified as leaning Republican had increased. And Donald Trump was overwhelmingly popular in North Dakota. Her Republican challenger had promised complete loyalty to the President. Heitkamp had voted along with President Trump more than almost any other Democrat - but it was still only about half the time, and she’d been falling behind in the race.

And then, mid-election, Justice Anthony Kennedy announced his retirement from the Supreme Court, and President Trump had the opportunity to appoint yet another judge. And his pick… was Brett Kavanaugh.

ALEX BLUMBERG: When -- when was the first time you heard the name Brett Kavanaugh? Do you remember where you were?

HEIDI HEITKAMP: Yeah. I mean, it -- I had gone to see the President. The President very much wanted to make this vote bipartisan, and, and invited me and I think Donnelly, Joe Manchin to come over and just visit with him. The irony was it was just a day after he had been in North Dakota campaigning for my opponent. 

ARCHIVAL TRUMP: And remember this, we have a pick to come up, we have to pick a great one...Heidi will vote no to any pick we make for the Supreme Court, she will be told to do so...

HEIDI HEITKAMP: But, you know, when the President invites you to the White House you go. And, you know, he said, "Well, who on this list can you support?" And I said, "I don't know these people on this list." Um, Brett Kavanaugh's name actually wasn't on the initial list. But a couple days later, um, the name was advanced of Brett Kavanaugh. And so I was one of the first Democrats to actually meet with Kavanaugh.There was a movement kind of in the caucus to not even meet with -- with Kavanaugh.


HEIDI HEITKAMP: Um, you know, kind of again the bitterness over what happened with Merrick Garland. And so, you know, we met very early on with Brett Kavanaugh. You know, I guess I've said this before and I don't ever intend to argue a case in front of Supreme Court so I'll probably be okay saying this, but I -- I never thought Kavanaugh was intellectually the quality of Gorsuch. 


HEIDI HEITKAMP: He was more kind of a backslapper to me, um, not nearly as detailed. Um, I look for empathy. I found a lot of empathy in some of the things that I talked to Justice Gorsuch about. Didn't really find an empathetic person in -- in Judge Kavanaugh.

ALEX BLUMBERG: You said that you look for empathy?


ALEX BLUMBERG: How do you do that?

HEIDI HEITKAMP: I think you -- I don't want to get into questions because, you know, I think those are private discussions. But frequently talk about things in their life that -- um, that they've experienced that have challenged them and how they overcame those challenges and what they learned from those challenges, 


HEIDI HEITKAMP: What I think is important is, what have they demonstrated in terms of their willingness to look at the other side of things and change their mind? And I actually had many conversations about that. Like, when did you go into an oral argument thinking one thing and come out and said, "Well, I've had my mind changed." Because I think that's an important factor. Someone who'll listen. Um, the Supreme Court decides a lot of things that are basic to human freedom and basic to humanity, and if you don't have a sense of empathy or a willingness to change your mind or a willingness to be persuaded, I don't think you belong on the court.


HEIDI HEITKAMP: Um, But you know again, going back to is he qualified? He had already been confirmed for the second-most important court in the United States, the D.C. Circuit. And he was the President's pick. And just as I think that the election of Obama had the consequence of making sure that he was entitled to a fair evaluation of his appointments which is the way it used to be in the Senate, I wasn't gonna deny that to this president just because I disagree with him.


HEIDI HEITKAMP: Um, you know, I was inclined to vote for Brett Kavanaugh.

ALEX BLUMBERG: Mm-hmm. So he -- he answered enough that you felt like, "Okay, this is somebody that I can like my state wants me to ..."

HEIDI HEITKAMP: Yeah. I mean, I wasn't, like, enthusiastic. "Whoa! You know, this is going to be a great jurist. I've just found -- you know, I found a new Oliver Wendell Holmes." No. I mean, no I didn't think that in any way shape or form, but I did think that -- that he had met the -- the criteria.

ALEX BLUMBERG: Heitkamp seemed poised to stick to her playbook: taking the President's pick into consideration with an open mind, leading to the sort of decision that would go over well with voters in North Dakota that fall. 

And then something happened that upended that playbook. A psychology professor named Christine Blasey Ford said that Kavanaugh had tried to rape her in high school. In a letter to a Democratic senator, Blasey Ford detailed how Kavanaugh pushed her into a bedroom at a party, with a friend named Mark Judge, and sexually assaulted her. The revelation shook Washington. President Trump called the allegations false, and claimed that Democrats were orchestrating a “big fat con job.” But Democrats said the allegations raised serious questions about whether Kavanaugh was qualified for the highest court in the land.  

So Senate Democrats and a few Republicans insisted on an additional hearing to listen to the testimony of Blasey Ford, and to hear Kavanaugh’s response. Blasey Ford testified first. Heitkamp watched the proceedings closely.

HEIDI HEITKAMP: My experience as North Dakota's Attorney General working, eight years to come up with better solutions to what happens to victims of sexual assault — that experience drove my evaluation of that hearing.

ARCHIVAL CHRISTINE BLASEY FORD: Brett and Mark came into the bedroom and locked the door behind them. There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed on to the bed, and Brett got on top of me, he began running his hands over my body, and grinding into me…

HEIDI HEITKAMP: There was no doubt in my mind she was telling the truth.

ALEX BLUMBERG: What stood out to you from what she said that made you -- that gave you that confidence?

HEIDI HEITKAMP: I mean, I think everybody wanted to say, "Well, she didn't remember the day. She didn't remember this. She didn't remember that." You don't remember those details, but, um, I think the thing that -- that she said, "What's the one thing you remember? That they laughed." 

ARCHIVAL PATRICK LEAHY: What is the strongest memory you have? Strongest memory of the incident? Something that you cannot forget? Take whatever time you need.

ARCHIVAL CHRISTINE BLASEY FORD: Indelible in the hippocampus is the laughter. The laugh — the uproarious laughter between the two, and their having fun at my expense.

HEIDI HEITKAMP: I know enough about survivors of sexual assault, and I know enough about trauma and what trauma does. I mean, you know, there's things I think will never leave people's memory, and -- by the time she was done testifying, I just believed she was telling the truth.

ALEX BLUMBERG: Mm-hmm. Did you think your reaction was going to be the same as everybody in that -- in that room? Or was it ...

HEIDI HEITKAMP: Yeah And I think that the Republicans thought she was telling the truth. Then you started hearing, "Well, it happened to her but it wasn't him." And there's no way anyone who's ever worked with survivors would say it happened to you but it wasn't him. I mean, she knew who this was. 

ALEX BLUMBERG: So as she's testifying, are you -- are you thinking, like, "I'm actually gonna change my vote. I'm not gonna do it." Or were you waiting to see...

HEIDI HEITKAMP: No. I was thinking, "Okay, I believe her. And this is incredibly troubling and I need to listen to him."


HEIDI HEITKAMP: You know, I guess that's -- that's probably the lawyer in me that you don't just listen to one side of the story, you listen to the other side of the story and you listen, um, for -- for a level of honesty and clarity and maybe empathy. And so I mean, it just seemed clear to me that the only right response was for Kavanaugh to explain why he wouldn't remember this event or, at least provide some kind of legitimate response to what she said.

ARCHIVAL BRETT KAVANAUGH: This confirmation process has become a national disgrace. The constitution gives the senate an important role in the confirmation process. But you have replaced advice and consent, with search and destroy...

HEIDI HEITKAMP: I saw somebody angry. Um, I saw somebody who was overly defensive, which always is a -- is a trigger for me. You know, the thing that -- that we tend to resist the most in life are the things that are truer. If it hits just a little close to home, you tend to be more defensive. And I think that's -- that's what you saw. Plus you saw somebody who has decided that the way to get a seat on the Supreme Court is to be completely partisan.

ARCHIVAL BRETT KAVANAUGH: This whole two week effort, has been a calculated and orchestrated political hit, fueled with apparent pent up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left wing opposition groups. 

ALEX BLUMBERG: Was there a -- um, was there a moment from the Kavanaugh testimony that was emblematic to you of like, "Oh, this is not what I want to see. This is the thing, this is ..."

HEIDI HEITKAMP: Clear as day, it would be the -- the questioning done by Senator Klobuchar.

ARCHIVAL AMY KLOBUCHAR: You said sometimes you had too many drinks. Was there ever a time where you drank so much that you couldn’t remember what happened, or part of what happened, the night before. 

ARCHIVAL BRETT KAVANAUGH: No, I remember what happened, and...

HEIDI HEITKAMP: Um, when he chose to attack her... 

ARCHIVAL BRETT KAVANAUGH: I think you’ve probably had beers senator, and...

ARCHIVAL AMY KLOBUCHAR: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before or part of what happened? 

ARCHIVAL BRETT KAVANAUGH: It’s, you’re asking about, yeah, blackout...I dunno, have you?

ARCHIVAL AMY KLOBUCHAR: Could you answer the question judge. I just...so, you, that’s not happened. Is that your answer?

ARCHIVAL BRETT KAVANAUGH: Yeah and I’m curious if you have.

ARCHIVAL AMY KLOBUCHAR: I have no drinking problem judge.



HEIDI HEITKAMP: If you wanted somebody who wasn't impulsive, who thought before they talked, who was judicial in their temperament, that's not how they react to a United States Senator who was not saying anything, you know, threatening, um who was simply asking a question. 


HEIDI HEITKAMP: And I will say this honestly and some people may groan about this, but I think the fact that he was completely willing to do it with a woman told you something about his character. 


HEIDI HEITKAMP: You know, the Republican side of this wanted to pretend that this was a criminal trial, which it wasn't. It was a job interview. And if any person who I had the responsibility of hiring, had behaved like that in a job interview, they would have been shown the door right after that. 

ALEX BLUMBERG: I heard that you watched the hearing again on mute.

HEIDI HEITKAMP: Yeah. No, I think -- I advise everybody who wants to opine about a debate to watch it with the sound off. It's not -- it's something I've done probably my whole political career, because I think so much of communication is non-verbal. You know, it's the old Nixon-Kennedy debate, right? If you listened to it on the radio you thought Nixon won. If you watched it on television you thought Kennedy won. And -- and communication isn't just about what you say, it's about how you say it, and your expressions and your gestures.

ALEX BLUMBERG: Tell -- describe what you see when you watch it with the sound off.

HEIDI HEITKAMP: Well, just red-faced, angry, you know, wild-eyed. You know, it's -- it's quite striking.

HEIDI HEITKAMP: And you know, what you look for in a Supreme Court justice is a calm demeanor, is a -- is a kind of rational person. And people would say, "Oh well, you know, what did you expect of him? He was, you know, being accused of this horrible thing that he -- he alleges he didn't do." And I said, "Well, if you're, you know, Neighbor Joe, I expect you're gonna be angry. Um, but if you're trying to be on the U.S. Supreme Court, I expect you to understand that you have an obligation to acquit yourself in a way that's not threatening, that's not angry, that is rational and reasonable. That's the responsibility of a Supreme Court justice. And you cannot watch that with the sound off and not be frightened by watching this man. 

ALEX BLUMBERG: Heitkamp had come to a difficult realization. She was going to have to vote against Kavanaugh. Which meant, voting against the wishes of the majority of the people in North Dakota — putting her senate seat, and the Democrats’ hopes of re-taking a senate majority, in jeopardy. 

ALEX BLUMBERG: You’re in the midst of this big re-election campaign, and you’re an underdog. Did anybody on your staff try to talk you out of it? You know, just sort of like talk to you about, like, well the politics of this decision?

HEIDI HEITKAMP: No. I -- I did have other members who tried to talk me out of it, because they understood the polling in North Dakota. 

ALEX BLUMBERG: What kinds of things were they saying to you?

HEIDI HEITKAMP: They were saying that there's no way you can get re-elected if you vote this way on Kavanaugh.

ALEX BLUMBERG: And what would you say back?

HEIDI HEITKAMP: I'd say I don't care.

ALEX BLUMBERG: That's a -- that happens pretty rarely in politics, doesn't it?

HEIDI HEITKAMP: I don't know. I don't know. You know, the job is pretty miserable. [laughter] Especially now. You know, I -- I think that it's a -- it's -- it's a selfish thing what I just said, because you've got to live with yourself at the end of the day. You've got to think, "Did I go there and do the right thing?" You have to make a decision, and there isn't -- there isn't a job in the world that's worth your own self-respect. And -- and so, you know, you have to be able to say I cannot vote that way regardless of, political outcomes. You know, when -- in 2000 when I ran for governor, I was diagnosed with stage-3A breast cancer. The doctor at the end of my treatment said, "Well, you have about a 28 percent chance of living 10 years." That was 18 years ago. And -- so, you know, you have an opportunity every day to live your life the way you believe will make your children and your husband proud. And that's not taking -- taking, you know, an easy vote on something as important as the Supreme Court. 

ALEX BLUMBERG: Mhm. When -- when you decided to vote no, how -- what was going through your head?

HEIDI HEITKAMP: Well, that -- that in a vote this important that I knew that was being highly watched, there would have to be an explanation to people in North Dakota. 

ALEX BLUMBERG: Coming up, in the final days of her campaign back home in North Dakota, Heidi Heitkamp has some explaining to do. 


ALEX BLUMBERG: Welcome back to Without Fail and my conversation with former Senator Heidi Heitkamp. 

After Heitkamp decided to vote against confirming Kavanaugh as a supreme court justice. Political donations from around the country started flooding in for her, an outpouring of support from Democrats and liberal activists across the country.

But back at home, she was about 10 points behind in the polls, and her opponent was using the vote to make the case against her, to say to voters that Heitkamp was just another Democrat who would vote along party lines. Heitkamp needed to explain her decision to the people of North Dakota.

HEIDI HEITKAMP: We did a political ad. And there was a conscious decision on explaining the vote

ARCHIVAL HEIDI HEITKAMP AD: I’m Heidi Heitkamp. And I thought you should hear exactly why I voted against Judge Kavanaugh...

HEIDI HEITKAMP: I wanted to say I believed Judge Kavanaugh lied at his hearing. 

ARCHIVAL HEIDI HEITKAMP AD: Honestly, I don’t think he told the truth and even if he did, he showed himself to be too biased to be impartial. I approve this message because I believe that a senator has to put politics aside, and do what’s right for our country. 

ALEX BLUMBERG: But you knew also that he -- that your vote would not be popular among your constituents.

HEIDI HEITKAMP: Yep. And, you know, this was the greatest example that my opponent could show where I was, you know, with the mob, so to speak.

ALEX BLUMBERG: What -- what -- what were the after-effects? Like, in terms of -- like, in terms of its impact on your race? Talk about that.

HEIDI HEITKAMP: You know, people you would meet in a parade who would talk about how disappointed they were. I had a guy come up to me. He said, "You know, I think you've done a great job, I think you're a great person. You know, I -- I just can't vote for you because you're one of the mob." And they weren't talking about just Democrats. They were talking about what they saw during the Kavanaugh hearing with women protesting, and...people saw this as a partisan vote on my part.

ALEX BLUMBERG: It's -- your theory of the case is -- is the exact opposite of "I'm with the mob."


ALEX BLUMBERG: And I think part of what the dynamic is, is you're trying to keep it tethered to the facts of the case here and, like, here's this person who's just not qualified. But he came to represent so much more. So your No vote on Kavanaugh felt to people almost like a betrayal somehow. That you joined forces against them, your constituents. What do you think -- what do you think was the betrayal that they were seeing in you somehow? What -- what was that about?

HEIDI HEITKAMP: Many people said, "Well, look, you know, you said you were gonna go do what North Dakota wanted you to do." And, you know, North Dakota, if you looked at a public opinion poll, supported the confirmation of Justice Kavanaugh. How could she possibly say she represents us when she took a contrary vote on a vote that's important as a confirmation vote. And I couldn't argue it wasn't an important vote, because I think it is. I think it is a critical vote. And so, look, you know, I'm there to exercise my judgment. My argument was This isn't a decision just based on what you take in a public opinion poll yesterday. This is a decision you're making for 30 years. There's no do-overs. It's not like passing Dodd-Frank and saying, "Oh, we need to do some fixes for small community banks." I mean, you don't have that choice in a confirmation to a lifetime position. 


HEIDI HEITKAMP: He's going to be on the court for 30 years at least. And -- and -- and you know -- and what does that say to all the women who came forward who had so many stories that were as believable as Dr. Ford's?

ARCHIVAL NEWS ANCHOR: Guys I got a call to make, and this will not surprise most political observers. Heidi Heitkamp, the Democratic incumbent, goes down in a deep red state, North Dakota, of course…

ARCHIVAL NEWS ANCHOR: That’s a bigger deal than just one senate seat, Savannah


ARCHIVAL NEWS ANCHOR: That’s number 50!

ARCHIVAL NEWS ANCHOR: Ok, number 50 for Republicans

ARCHIVAL NEWS ANCHOR: That’s number 50 for the republicans. They will retain control. It’s official. 

ALEX BLUMBERG: You go on to lose your re-election bid. And I want to just talk about what to make of this all. Because, like, one of the things that you said earlier was you know, around the Gorsuch vote, you wanted to be remembered as the person who doesn't play the games, who doesn't play politics. Who does make every sort of decision on the merits. And you can -- you can look back and sort of say, like, "Look, I'm not that person. So when I make a tough vote, you know, people will know I'm not that person. I'm not doing it politically." In this case, that didn't seem to matter at all.

HEIDI HEITKAMP: [laughs] Nope, it didn't. I mean, you know -- you know, people always say they want people who, you know, vote their conscience. And "Look, you know, electoral results would tell you that's not what people want. People want somebody who is on the team, who's loyal no matter what." And, you know, we've become polarized. And people will blame Washington for polarization, but the public's more polarized. And, and I think we all need to accept that and understand that the public's gotten more partisan. I think that there is more partisanship among the population right now than I've ever seen.

ALEX BLUMBERG: Huh. How does that make you feel?

HEIDI HEITKAMP: Well, it makes me feel that -- that we failed. That -- that people like me have failed. And I was basically asked, you know, what's the one thing that you would do if you wanted to change what's happening in American politics? And I would say the moderate middle has to engage and become politically active. Because right now, political activism is on the far extremes.

ALEX BLUMBERG: Hmm. It's -- it's so interesting I think -- when I think about -- political trends, like, when Barack Obama first burst on the scene it was the same sort of call. It was like there is no red America, there is no blue America, there's the purple America. and that was such a compelling idea to people back then. People wanted to believe it so much. And then the minute he took office, it seemed like. Oh, no. But we can't compromise at all. We can't agree at all. And everybody has their own explanation for how that happened. But it did feel like there's this sort of dual nature in American politics where it feels like that -- that idea of, like, we are more alike than different everyone and, and we can compromise on things can be this very compelling political message. But there's also something about us that we don't like it.

HEIDI HEITKAMP: I don't know that that's true. I mean, I really don’t...I think that -- that hopeful optimistic message actually carried President Obama forward. The thing is is that, it's not enough to have the excuse that well, I couldn't get it done because Mitch McConnell stopped me. Um, I think it's really important when you promise that you're gonna provide leadership that people see that leadership happens. And you know, my argument is you gotta be honest about what you can deliver. "I mean I think the important message if -- if I were running for president would be, tell people, you know, what you're going to do and how you're gonna get it done, not just what you're gonna do, but how do you get that done? Frequently what I tell people is they say, "Well, what do you think should be a theme?" I said, "Make government boring again."


HEIDI HEITKAMP: Remember when government was boring? You know, people didn't want to even think about it.

ALEX BLUMBERG: But I think it's, like, there is this sense of, like, I feel like never in my lifetime has a moderate message felt more out of touch right now than -- than -- than where things are. 

HEIDI HEITKAMP: Someone needs to be full-throated moderate and then we'll see.

ALEX BLUMBERG: Right. It's funny though, because it's like you're wanting somebody to sort of like become a proud … outspoken, loudly-voiced moderate, but a moderate is about sort of being like, well let's see what the options are here and let's be pragmatic. It's sort of -- it's a tall order.

HEIDI HEITKAMP: I'm a loudmouth moderate. I talk about it all the time, and so -- so I don't -- I mean, I don't …

ALEX BLUMBERG: Why aren't you running for president?

HEIDI HEITKAMP: No. Why aren't I? Because I don't want to go on a stage and get booed. [laughs] No, I mean you know, I think -- I think that -- that this is -- this is an opportunity I think for someone right now to really seize the moderate middle. 

ALEX BLUMBERG: Since her senate loss, Heitkamp has tried to activate that moderate middle. She’s putting her leftover campaign funds to work, on a project called One Country - which conducts political research on the interests of voters in rural America. Heitkamp says the goal is to help Democrats craft a message for 2020 that can beat President Trump in the rural states he won in 2016. For more information, you can visit onecountryproject.com.

Without Fail is hosted by me and produced by Molly Messick, Rob Szypko and Heba Elorbany. It is edited by me and Devon Taylor. 

Music and mixing by Bobby Lord.

Special thanks to Dave Thompson from Prairie Public Radio.

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