Democrats can shout but Brett Kavanaugh’s already a done deal. That’s bad news for the GOP.
Let me explain.
Let’s say I offered to buy your car for $10,000, and you shouted, “Sure! Where do I sign?” Do you think I made a good deal? Yes, I’ve sold a car, which was my goal. But your eagerness to leap at my offer indicates that I could have driven a harder bargain.
Republicans are in a similar situation with soon-to-be Justice Brett Kavanaugh. Unless something scandalous emerges (and, no, being a Washington Nationals fan with a frat bro first name isn’t nearly scandalous enough), he will likely sail through his confirmation. The fact that Democrats are essentially conceding his confirmation suggests Republicans settled for less than they might have gotten.
Last week, I suggested that Donald Trump might select Amy Coney Barrett to pick a fight that he would win in the court of public opinion. Such a fight would “troll the libs” who couldn’t resist the temptation to attack a woman who, at 46, would be on the high court for decades and who might someday vote to overturn Roe v. Wade.
Then, Trump made a fine, if underwhelming, pick. And just as liberals will have to feign outrage, conservatives will have to feign glee. This is a political problem—or, at least, a missed opportunity to turn out the vote.
Midterm elections are largely about exciting your base. The liberal base is already excited to provide checks and balances against Trump, a man they see as an authoritarian. How can Republicans counter this enthusiasm gap? Having gotten tax cuts and another Supreme Court justice on the bench, Republican voters might be very pleased with where things are but contentment does not equal excitement. Picking a fight over Amy Barrett—especially if she had been attacked politically—would have provided that sort of energy.
In that scenario, Democrats running for re-election to the U.S. Senate in red states would have faced a real dilemma. They could have either voted for Barrett (thereby earning the wrath of national progressives and creating internal dissention on the left), or they could have voted against Trump’s nominee (a move that would have increased their likelihood of losing re-election in the midterms).
The problem with Kavanaugh—again, assuming no skeletons emerge—is that these vulnerable Democrats now have a very obvious move: Reluctantly vote for Kavanaugh. Yes, supporting Trump’s nominee won’t sit well with a lot of progressives, but Kavanaugh doesn’t troll the libs to the same degree. As The New York Times’ Jonathan Martin tweeted, “Barring unexpected land mines, red-state Senate Dems suggest the 3 of em who voted for Gorsuch will also vote for Kavanaugh. And [Alabama Sen. Doug] Jones may join.”
Talk about a missed opportunity. For a president who likes to pick culture-war fights over random and pointless things before breakfast, he missed an excellent opportunity to pick a fight that might have been worth the fighting for.
Don’t get me wrong―I’m not suggesting it’s smart to take huge risks when it comes to Supreme Court appointments. When the stakes are this high, I understand the desire to play it safe. For example, it’s possible that Republican Senators Susan Collins and Lisa Murkowski might have provided some cover for Dems, had they balked at Barrett. But I still don’t think that would have alleviated the pressure a Barrett nomination would have put on Democrats running for re-election in states like Indiana, Montana, West Virginia, and Missouri.
Instead of choosing Barrett, Trump did what a President Jeb Bush might have done—he chose the safe, establishment pick that will ruffle the fewest feathers. The frustrating thing here is that thoughtful conservatives have to deal with the downside of a president who says and does dangerous things (about NATO… about the media… about John McCain), but in this instance, at least they won’t fully reap the upside of a president who, in almost any other instance, is willing to throw caution to the wind. In an administration that loves drama and fights, choosing Barrett would have been a calculated risk worth taking.
First, on the merits, Judge Barrett (primarily due to her tenure as a Notre Dame law professor and former Scalia clerk) was a perfectly qualified pick. Second, as noted above, this fight—with or without her confirmation—would have helped motivate the GOP base during the midterms. Conservatives would either be ecstatic that they got her or angry enough to vote to limit future “Borking.”
Even if Barrett was nominated and crashed and burned and even if the window was closing on Republican control of the Senate (a remote possibility in 2018), it would have been plausible to make Kavanaugh your “Plan B” pick (break in case of emergency).
So making Kavanaugh Plan A feels like a missed opportunity. For a president who essentially won the Republican nomination on a “But he fights!” platform, it is ironic that this is the one time he decides to be cautious and conventional, instead of bold and fearless.