If he can get liberals to take SCOTUS seriously, he will succeed—in time.
|Jul 10||Public post|| 2|
President Trump unveiled his nominee to replace Justice Anthony Kennedy on the US Supreme Court. He picked Brett Kavanaugh, a former aide to President George W. Bush and current appeals court judge. Kavanaugh is said to be in the mold of Chief Justice John Roberts. He’s deeply ensconced in the Republican establishment. He is widely described as brilliant, affable, disarming and monumentally qualified.
All that’s great, but all that’s beside the point for a Senate in which half the members still feel the sting of the memory of Merrick Garland. Garland should be on the Supreme Court but is not thanks to the scorched-earth tactics of Senate Majority Leader Mitch McConnell. After Antonin Scalia died, McConnell said no confirmation in an election year. The court went without a ninth justice for 14 months.
Some Democrats are still calling for McConnell to abide by his own rule this time around. The ploy is an apparent attempt to shame McConnell into waiting until after the next Congress is seated to hold a vote. Problem is, McConnell is immune to shame. This is about power and politics, not fair play. Yes, he’s now calling on his Democratic colleagues to set aside partisanship and consider Kavanaugh’s nomination on the merits. Have I mentioned McConnell is metabolically immune to shame?
The so-called McConnell rule is a dead-end. Fortunately, Minority Leader Chuck Schumer appears to know this. He has apparently decided that his best option is increasing pressure on vulnerable Senators, Republican and Democratic, by raising awareness of what’s at stake. On Tuesday, he told CBS This Morning:
“Let me say this. I believe if we can prove to the American people, which I believe is truly the case, that this nominee will lead to a court that repeals women's reproductive freedom, repeals ACA with its protections for pre-existing conditions, we will get a majority of the Senate to vote for it. Obviously, even if we had every Democrat, we need two Republicans. But if we can make that case, we will get a majority.”
Two ways of looking at this.
One is that he’s punting. Politicians will appeal to the people when they have a snowball’s chance of succeeding procedurally. That’s not a bad thing in and of itself. Fact is, the Democrats really don’t have much of a chance given that they need 51 senators to block Kavanaugh. That means keeping red-state Democrats in line while hoping against hope that they can get Susan Collins or Lisa Murkowski to join them. Both are pro-choice Republicans who balked at attempts to repeal the Affordable Care Act. Schumer knows the odds are long, but he can look like he’s taking action.
The other way of looking at this is expansive. Fact is, the base of the Democratic Party does not take the court as seriously as the GOP base does. Schumer is right in saying that in fighting a losing battle, but he can mobilize liberals who have taken for granted a women’s right to ownership of her own body for the last half century. Few things get the electorate’s attention like the prospect of losing something. It happened with Obamacare. Schumer may be envisioning a public campaign to pressure Democratic and Republican moderates to block Kavanaugh. It’s not impossible.
Is it probable? I don’t think so.
Obamacare isn’t the high court. Kavanaugh’s confirmation will be the culmination of decades of conservative effort to turn back the clock of history, which is to say return the country to its God-fearing Christian origins, whatever that means. The question is: does a liberal’s fear of losing the high court for a generation equal or surpass a conservative’s desire to change it? I think a reasonable answer is no.
As I have been saying, the Democrats must play a very (very, very) long game since they can’t win the short game. In raising awareness of the issues at stake, Schumer can make it clear, or start to make clear, that this new court will be no friend to the Democrats. His claim will be substantiated over time when liberals start to notice a series of rulings that strike down legal precedents they believed long settled.
Nothing is settled. Not even the court.
In addition to issues like abortion and gun control, my hope is the Democrats speak plainly about the fact that Anthony Kennedy himself played a role in securing his replacement. Only after Trump promised to tap Kavanaugh did Kennedy feel comfortable resigning. Moreover, Kennedy’s son, Justin Kennedy, played a role in pressuring his dad to resign. The junior Kennedy is the president’s loan officer at Deutsche Bank, the only bank still willing to lend to a bankrupted real estate magnate.
I don’t mean to inspire conspiracy theories. There are plenty of those. My point is that the Supreme Court does respond to politics even though everyone says it doesn’t. With enough scrutiny from Democrats, the party can send a warning: tread lightly or else. “Or else” could be term limits or court packing or whatever. But that’s for later. For now, Schumer’s main job is getting the base to see what’s really happening.
In Monday’s newsletter, I reported that Mitch McConnell had already scheduled a November debate over the president’s Supreme Court nominee, after the midterms but before the new Congress is seated. That’s incorrect. McConnell said it would take place “in the fall.” News reports say it could be in September or October.
In any case, I regret the error.