The libs, it turns out, were not owned.
In fact, if President Trump trolled anyone this week, it was conservatives. Judge Brett Kavanaugh might well turn out to be a terrific U.S. Supreme Court justice. But in terms of energy and excitement, it’s hard to see this nomination as anything other than a letdown.
Two years ago, if you told most conservatives that Republicans would be nominating a 53-year-old Supreme Court justice named Brett Kavanaugh, they would have been ecstatic. Today, it’s a buzzkill.
If you’re thinking logically, the important thing for conservatives should be that Trump stuck to the list that was created for him by the Federalist Society. As Ross Douthat observed, “cultivating serious judges is one of the few things conservatism does well, the president has a host of qualified nominees to choose from…”
But the heart wants what the heart wants. And it is human nature to want more, especially when the idea has had time to take root. And, for the last week, or so, that’s exactly what happened.
The dirty little secret of column-writing is that, for big events such as this one, we tend to pre-write our columns. In this case, there were two general “takes” I had ready to roll: The Amy Coney Barrett column and the Everybody Else column. That tells you all you need to know about which narrative might have been exciting.
In a way, this rollout was unfair to Kavanaugh, who, again, could turn out to be a fine pick. Trump likes drama and suspense, but on this occasion, he was too cute by half. He might have been better off without the teasing, only to settle on a fine, if perfunctory, pick.
Maybe there was a method to the madness. Trump is a master at expanding the Overton Window—at changing perceptions so that something once considered a fringe position is repositioned to be mainstream. In this regard, the Barrett boomlet does help make Kavanaugh seem more moderate.
But this is a double-edged sword. On the downside, Kavanaugh, a nominee who might once have been considered conservative and somewhat exciting, is now, when compared to Barrett, viewed by the public as a boring establishment moderate who is tight with the Bush family.
I’m sure there’s some psychological principle to explain this phenomenon, but, as a dad, here’s what hit me: If you tell your kids that you’re taking them out for a cheeseburger, they’ll be happy. But if you present some other potential options—Dave & Buster’s, pizza and a movie, chocolate cake and a Taylor Swift concert—the burger might not fare so well. Brett Kavanaugh is the cheeseburger you might have liked before you heard about everything else.
Even if you aren’t worried that Kavanaugh is going to turn into some David Souter-type sellout, this is why this pick doesn’t make much sense to me. Trump’s M.O. has always been to focus much more on ginning up base excitement than appeasing possible critics—yet this nomination fails at the former, while the latter remains to be seen. Don’t get me wrong, once the ennui subsides, conservatives will rally around Kavanaugh. But it will be more like going through the motions.
So why pick Kavanaugh and not Barrett? Maybe it’s his Yale and Yale Law pedigree? Maybe it’s because he has argued that presidents shouldn’t be distracted by lawsuits and investigations. Maybe Trump just liked the way he looks. Or maybe it’s because he clerked for the retiring Justice Anthony Kennedy.
Actually, though, during Monday night’s announcement, Trump hinted that it had to do with Kavanaugh’s extensive experience as a judge on the United States Court of Appeals for the District of Columbia Circuit, talking about his "impeccable credentials,” “unsurpassed qualifications,” and reputation as as “a judge's judge, a true thought leader among his peers.”
For Barrett fans, the silver lining is that this gives the 46-year-old more time to develop. The next time a vacancy opens up, she will have logged more time on the bench as a judge on the U.S. 7th Circuit Court of Appeals. In my estimation, she was utterly qualified to sit on the United States Supreme Court, but the knock on her was that she had only been a judge since November. Her primary experience is derived from being a law professor at Notre Dame. Having seen what happens to exciting and diverse young conservatives—looking at you, Sarah Palin and Marco Rubio—who reach for the brass ring at a young age, being passed over could ultimately benefit Barrett.
Meanwhile, now that Trump has made his opening salvo, the ball is in the Democrats’ court. If Barrett was an attempt to troll them, Kavanaugh is an attempt to lull them to sleep. This, of course, won’t work. Not when the stakes are so high. Case in point: Before even finding out whom Trump would nominate, Sen. Bob Casey (D-PA) announced he would be a “no” vote. Sen. Chuck Schumer (D-NY) had his “no” statement out even before the announcement was done.
As Senate Majority Leader Mitch McConnell reportedly noted before Trump nonetheless went with Kavanaugh, his paper trail is pretty long and I have no doubt that Democrats will find something to use against him. Here, Democrats—who already have their hands full defending vulnerable red state incumbent senators—should proceed with caution, although I’m pretty sure they won’t.
“By making abortion the centerpiece of a campaign against the Trump nominee, the advantage of energizing the party’s liberal base is offset by putting some of the Senate’s most endangered Democratic incumbents on the spot,” writes Al Hunt. “They’re the ones representing conservative states where anti-abortion politicians tend to do well.”
Over at The New York Times, David Leonhardt suggests the first step for Democrats is acceptance: “Democrats should go into the confirmation debate recognizing that it is almost certainly unwinnable,” he advises. “It will not depend on how hard Democratic leaders fight or which tactics they choose, alluring as that fantasy may be.”
Liberalism, he suggests, can advance—despite this daunting challenge—if progressives play the long game. This is good advice. I hope they ignore it.
Trump has a way of getting lucky, and I suspect he might again. Who needs to own the libs when they do it to themselves?