Maybe if President Trump had nominated Barack Obama to fill the vacancy on the Supreme Court, or perhaps Hillary Clinton, or maybe Alexandria Ocasio-Cortez, the 28-year-old democratic socialist who just won a Democratic primary in New York City, the “Resistance” would happily go along and vote to confirm. I say “maybe” because the way things work these days, if Donald Trump is for it, Democrats have to be against it. So who knows?
The president’s nominee, Brett Kavanaugh, is a smart legal conservative, a judge who sits on the Court of Appeals for the District of Columbia. Which means Democrats will demonize him. They’ll portray him as an ideologue hell bent on taking way the rights of women, minorities and everyone who isn’t white, male and rich.
The editorial board of National Review got it right:
“It would be utterly implausible, indeed laughable, for Senate Democrats to try to portray Kavanaugh as unqualified. They will instead try to present him as a right-wing monster. They will try to make him pledge to keep the Supreme Court rather than legislatures in charge of abortion policy, even though the Constitution requires no such thing; then they will condemn him for refusing to take the pledge. They will portray his concern for the structural limits on government power as a blanket hostility to government, which it is not. And they will cherry-pick decisions in which he ruled against a sympathetic cause or litigant, as is sometimes a judge’s duty.”
But Democrats have reason to worry. They’ve long seen the Supreme Court as the place to go when they can’t get their ideas validated either by a majority of the American people or by Congress. Now they’ve got a problem, one that could go on for decades.
But so do we have a problem. The Court has become more and more political in recent years. “In the past 10 years … justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution,” as Lee Epstein, a political scientist and law professor at Washington University in St. Louis and Eric Posner, a professor at the University of Chicago Law School write in the New York Times.
How long can we have confidence in the Supreme Court if we see it not as the place that calls balls and strikes, but as a political institution, not unlike the other two branches of government?
And despite the “concern” coming from liberals, rest assured that if Hillary Clinton had won, she’d be doing the same thing that Donald Trump is doing: picking judges who share her values and will vote accordingly; tossing a juicy bone to the base.
Sooner or later, another liberal Democrat will be elected president, and he or she will pick justices not just for their legal smarts, but also for their politics.
It’s not that this is something new, it’s that the Court is becoming more and more divided along political lines, and the partisan divide is becoming more and more apparent.
So Democrats are understandably afraid. But fearful people often do foolish things. And Democrats will be taking a big chance if they go too far in the demonization of Judge Kavanaugh. Voters will see that he’s not a monster. And those who persist in pretending he is will come off as unreasonable, as hopelessly partisan, and in some cases, as borderline unhinged.
And there’s a good chance that partisan opposition to President Trump’s nominee, along with progressive demands that ICE be abolished, and the continuing harassment of Republicans in restaurants and outside their houses, won’t sit well with moderate voters in November. Unhinged, borderline or otherwise, rarely does.