Democrats Should Be Prepared To Lose This Nomination Battle
I normally prefer optimism over pessimism when writing about politics, and I always try to steer completely clear of downright defeatism. I think my work over the years would prove this to be generally true. At the same time, I always strive to be realistic, which leads me to the sad conclusion that Democrats are almost sure to lose the upcoming battle over Donald Trump's most-recent Supreme Court nomination. Democratic politicians and their supporters should be mentally prepared for this outcome, because it is far and away the most likely to occur. Sorry to be the bearer of bad news, but this is probably going to be a fight Democrats are going to wage unsuccessfully on the Senate floor.
Of course, Democrats should indeed fight the nomination of Brett Kavanaugh as hard as is humanly possible, due to the stakes at hand. Not just Roe v. Wade but a whole host of civil rights, workers' rights, minority rights, gay rights, voting rights, and consumer rights (among many, many others) are at risk of being tossed aside as the highest court lurches even farther to the right. It's impossible to accurately count how many rights are at grave risk, in fact, because there are so many possible 5-4 decisions looming that could turn back the clock in any number of ways. The stakes are higher than they have been for a Supreme Court nominee in decades, in fact. It's hard to even overstate the case, at this point. For all the pious talk of respecting stare decisis that we're soon going to hear from Kavanaugh during the nomination hearings, there are a whole host of laws that conservatives on the court have been absolutely itching to overturn for a very long time. With a solid 5-4 majority, there will be absolutely nothing stopping them from doing so.
Which is why Democrats are now girding their loins for an epic political battle -- as they well should. The math is so tantalizingly close that Democrats can see a viable path to stopping the confirmation. If just one Republican senator voted against the nominee, and if all the Democrats hung together, they could block Kavanaugh from the high court. Unless John McCain unexpectedly shows up to vote, the Senate is currently balanced on a 50-49 knife edge. If only 99 senators are present to vote then Vice President Mike Pence won't even be required, because there will be no tie possible no matter which way the vote goes.
So far, there are two main targets for Democrats to entice across the aisle -- Maine's Susan Collins and Alaska's Lisa Murkowski, both of whom are supporters of Roe v. Wade and Planned Parenthood. But this target list could even be expanded. Ron Paul is making vague noises about not being happy with the nominee, but this is most likely nothing more than grandstanding. Voters in Kentucky are generally pretty tolerant of Paul's libertarian quirkiness -- but only up to a certain point. Denying a conservative majority on the court is likely far past that point (and Paul likely knows this already), so he's probably just now looking to get his name in the news. But there are other Republicans disaffected with the president who might be convinced to vote with the Democrats, just to stick a thumb in Trump's eye on the way out the door (all of these possibilities are retiring this year, so they don't have to worry about the voters' wrath in November). Jeff Flake immediately springs to mind, but he isn't the only possibility in this regard. Democrats only need one aisle-crosser to deny the nomination, after all.
But all of that is making a rather large assumption: that the Democrats will stick together themselves. There may, of course, be defectors from the Democratic camp too. There are three prime possibilities in this category, all of whom voted to confirm Neil Gorsuch last year: Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and Joe Manchin of West Virginia. All three are not-so-coincidentally up for re-election in very red states that Donald Trump won by large margins. Two out of the three are currently polling slightly behind their Republican opponents in the upcoming midterms. This, in fact, is the primary reason Mitch McConnell is going to hustle the nomination through before November -- to get these Democrats on the record, which will (one way or another) lead to Democratic disappointment.
No matter how bad the political landscape is in the Senate, however, Democrats could get one silver-lining political benefit from the upcoming fight, even if they are ultimately unsuccessful in derailing the nomination. Even if Kavanaugh is confirmed, the hearings will focus heavily on not just Roe, but other substantial issues. Foremost among these for Democrats is healthcare, since a 5-4 court could obliterate what remains of Obamacare. Democrats are already geared up for this aspect of the battle, and are already predicting that confirming Kavanaugh will mean the end of the guarantee that people with pre-existing conditions can buy health insurance. That is a very big deal to the public, as we witnessed in the congressional "repeal and replace" debate. It is also a has very real chance of happening, as a court case which could prompt such a ruling is already winding its way upward through the federal courts, and it could easily end up before the Supreme Court at some time in the next year. So this is not just empty fearmongering.
Healthcare was -- before Anthony Kennedy even announced his retirement -- already the top issue (or, at the least, in the top three) for voters in the midterm season. Democrats have been expertly campaigning on it, since the public trusts them far more than Republicans to deal with healthcare as a political issue. The nomination battle is just going to reinforce this in dozens upon dozens of House races this fall. It's not just abortion -- all healthcare reform is at risk from a conservative court. And this issue is critical for the biggest demographic group of voters that Democrats were already targeting (in the hopes of building a big blue wave) -- suburban women. Such women care deeply about healthcare and what the changing landscape means for their loved ones. Add a 5-4 conservative court into the mix, and the issue becomes even more crucial, politically.
So what could help Republicans in the Senate could hurt them very badly in the House. This may not be all that big a worry for them, since they were already in serious danger of losing the House anyway. In fact, it'll be hard to separate the Supreme Court issue from all the other issues voters will be thinking about in the voting booth this November, no matter what the outcome. But, as I speculated a few weeks ago (just before Kennedy made his announcement, in fact), perhaps this will be the first election where Democratic voters start treating Supreme Court picks as a major motivating factor when voting. Republicans have already been doing so for decades now, and the Democrats have a long way to go to catch up, really.
Elections have consequences, and one of the biggest and longest-lasting is judicial picks and confirmations. The Senate and the president set the legal tone for the entire nation, and now that both Harry Reid and Mitch McConnell have each "gone nuclear," all judges up to and including Supreme Court justices are now confirmed by simple majorities in the Senate. It will be ironic if this is the election that Democratic voters really wake up to this fact, because they will quite likely not be able to make any changes in the people responsible -- it's not a presidential year, and the landscape for Democrats in the Senate is so daunting that it would be a small miracle if they regained control (even if there's a very large blue wave in November). Instead, if Democratic voters start caring a lot more about judicial picks, they are going to first make their feelings known (by their votes) in the House -- which has nothing at all to do with the process.
Democrats in the Senate may not take a whole lot of solace in this, because they're about to enter into a confirmation battle they seem pretty likely to lose. But fighting hard and losing may make the issue even more acute for Democratic voters across the country this time around, which could lead to even more gains in the House. That's something, at the very least, but beyond this particular election year it may bear fruit down the road. If Democratic voters start regularly weighing the issue of judicial picks as heavily and as seriously as Republican voters already do, it could lead to an uptick in turnout rates in key races in 2020 and beyond -- when Democrats will have a decent shot at taking back both the presidency and the Senate. At this point, that may not seem like much of a silver lining, but this could bear some long-term dividends even if Kavanaugh is confirmed.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant

Comments for this article are closed.