Will Democrats fall for Trump’s Kavanaugh trap?
President Donald Trump’s pick is in and the Democrats’ battle has begun. Too bad they are a half century behind conservatives. Even more ominous, if Democrats fall into the political trap laid by Trump, liberal causes may be looking at decades of frustration and anguish.
Replacing Justice Anthony Kennedy, the court’s long-time swing vote, with Trump nominee Brett Kavanaugh will likely move the court to the right. But there will still be a 5-4 split between conservatives and liberals, just as there is now with Kennedy. Even with Kavanaugh on the bench, there will be swing votes and apparent “liberal” victories. The swing votes will just come from different places with arguments geared toward convincing just one conservative to split from the rest. After all these are judges not partisans, and the law does not always conform to their personal preferences. That is particularly true for judges employing originalist or textualist approaches, usually conservatives. That is precisely how a Kennedy, a Republican appointed by President Ronald Reagan, became a swing vote. It is why the late Justice Antonin Scalia — a conservative’s conservative — believed, “the judge who always likes the results he reaches is a bad judge.”
So while Democrat howls against Kavanaugh have begun to reach ear-splitting pitches, they could be setting themselves up for much bigger losses down the road. It isn’t Kennedy’s seat they should be focused on, it is the next two vacancies.
Two reliable liberal votes on the Supreme Court will almost certainly be the next two seats to open. Justice Ruth Bader Ginsburg is 85 years old and Justice Stephen Breyer is about to turn 80 next month. In contrast, the oldest conservative justice is Clarence Thomas who just turned 70. Replacing either Ginsburg or Breyer, or both, with another young, conservative justice, will tilt the Court 6-3 or 7-2 for decades. That is the long-game conservatives have been working toward for decades.
Since the broad liberal expansion of the Warren Court in the 1950s and 1960s, the federal bench and Supreme Court have occupied a prominent post in the hierarchy of conservatives’ wish list. Roe vs. Wade cemented that priority. In that time, there has been one driving force for many Republican voters: the appointment of conservative judges. Any other apostasy may be overlooked or explained away; indeed, President Trump owes his office to that phenomenon. Whatever else he is or isn’t, he was the only option to nominate a clear conservative majority to the Supreme Court. Consequently, many conservatives choked back all other reservations and voted for him.
Buttressed by a Republicancontrolled U.S. Senate, Trump could nominate Kavanaugh with impunity. Outside of a surprise defection from a senator like Susan Collins (R-maine) or Lisa Murkowski (R-alaska) the only two pro-choice Republicans, hearings and confirmation are mere formalities. Democrats can literally do nothing to stop the process.
Of course, the liberal-base wants Democrats to put up a fight and make a strong stand against Kavanaugh. And the Republicans who have fought this battle for so long probably want them to even more. The longer and louder the fight gets the more energized the conservative base will become. In an election where the enthusiasm gap for voters clearly favors Democrats, the clearest path for Republicans to reverse that course is a protracted fight over Kavanaugh. Liberals upset about Trump and the Republican Senate were already energized and engaged; but conservatives who may have sat this election out will suddenly have a clear motivating factor to show up at the polls. That will put huge pressure on Democratic senators up for election in red-states, people like John Tester (D-montana) or Joe Manchin (D-west Virginia).
If Democrats lose those seats, they have no hope of winning a majority in the U.S. Senate. And they will be stuck in the same position they are in now, with no power to stop any Supreme Court nominations over the next two-and-a-half years. And President Trump will be grinning ear-to-ear knowing he led them right into their own demise.
Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @Marionicolaiesq