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Opinion: How do Democrats address Kavanaugh confirmation?

August 22, 2018

The 24-hour news cycle includes a constant pivot to the next crisis. However, the partisan importance over the pending confirmation of Judge Brett Kavanaugh indicates that this subject will continue to flare up over the next months.

The Democrats have adopted the position taken by Senate Majority Leader Mitch McConnell in 2016 -- a delay in Senate hearings until after the General Election. That position misreads what McConnell said and the political situation then and now.

As to the first, McConnell actually said that action on Supreme Court nominations should be delayed only during presidential election years to let voters decide who would make that nomination. It was a cynical attempt to thwart a nomination by a sitting president of the opposite party. It was also a gamble, the prevailing wisdom being that Hillary Clinton would be elected president, pull the nomination of Judge Merrick Garland and substitute one far less appetizing to Republicans. The delay succeeded because Republicans controlled the Senate and had the power to prevent hearings.

Democrats should stop bringing up McConnells’ position. It won’t shame Republicans. Instead, Democrats might invoke their mandate to advise and consent, arguing that during mid-term election years those same voters decide who in the Senate gets to sign off on nominations. As the branch that has the final say, Democrats might claim Senate primacy in the process. While equally constitutionally suspect, this might force a Republican response and expose their cyniscm.

As for a second misreading, Republicans maintain control of the confirmation process and Democrats continue to play a weak hand. With no filibuster, Democrats cannot even delay or block a vote. Nonetheless, their base demands a push back, successful or not, lest they be faced with primary challenges, as were Republicans a few cycles past.

Republican defectors remain hemmed in by their base, which considers this an issue of great importance. Sen. Suzanne Collins of Maine illustrated this dilemma, inferring that if there was no actual demonstration of hostility to Roe v. Wade, a nominee would pass muster.

Likewise, Senate Democrats (Joe Manchin, West Virginia; Heidi Heitkamp, North Dakota; and Joe Donnelly, Indiana) who might support Kavanaugh represent states that Trump carried handily, voted for Justice Neil Gorsuch, have their political futures to consider and are preparing to meet with Kavanaugh.

As V. I. Lenin queried, “What Is To Be Done?” An open-ended definition of “winning” is in order.

Perhaps, during the confirmation process, the real contribution that Democrats can make is a painstaking exposure of Kavanaugh’s past positions such as a woman’s right to choose; executive power; access to affordable health care; unrestricted corporate political contributions; and his role in the Bush White House. This would educate the public on what is at stake with this nomination and those that will occur in the not too distant future, as well as how they will impact ordinary citizens.

It might also draw attention to the methodical filling of vacancies in the lower federal district and circuit courts. While this has been occurring largely under the radar screen, the vast majority of cases are decided at these levels, making it of equal consequence.

Democrats might also ramp up efforts to motivate voter participation among their base and any group affected by Supreme Court decisions. The goal being the point that, while the 2020 presidential election may be cathartic, the most immediate and consequential action is to flip control of the Senate this November.

This effort should focus like a laser upon Senate seats that could swing either way. This means seats currently held by both vulnerable Democrats and endangered Republicans. Secondly, an effort must be made in states where Republicans are assured of winning to force them to expend resources that could be allocated elsewhere. “Winning” is an elastic concept, and running interference plays a part in the big picture.

The apocalypse may be at hand, but equally possible, given that Justice Anthony Kennedy was no consistent friend to a Democratic agenda (he gave us Bush v Gore; Citizens United; and, most recently, joined in the bakery case allowing discrimination against the LGBT community; the Janus labor roll back; and upholding the Muslim ban), is that, while replaced by an equally conservative Kavanaugh, Chief Justice John Roberts will fill the role of the fifth swing vote in a divided court.

If that turns out to be the case, the battle will be deferred until the next vacancy, presumably justices Ruth Bader Ginsberg or Stephen Breyer. The approach outlined above, may not be the desired quick fix, but might offer Democrats their best opportunity to exert more influence when the ax finally falls.

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