From the moment President Trump announced his selection of stealth radical Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, it was clear that Democrats faced an almost impossible road to blocking his appointment. Their primary enemy is cold, hard math. With Democrats holding 49 seats in the Senate, they would need to unite unanimously around a “no” vote, then sway at least one moderate Republican — of which there are only really two in the Senate, Maine’s Susan Collins and Alaska’s Lisa Murkowski — to their side. (This scenario assumes that John McCain, who is undergoing treatment for cancer, will continue his absence from Washington, giving Republicans the slimmest of margins to work with.)
Despite the steep odds, it was reasonable to expect that the fight to prevent Kavanaugh from shifting the nation’s highest court rightward would consume gigawatts of liberal energy this summer and fall, entailing maybe the highest-pitched judicial battle since Clarence Thomas.
A month later, that clash hasn’t really materialized. Instead, as dueling stories in the New York Times and Washington Post make clear, the resistance to Kavanaugh has remained on a low flame, failing to boil over into the righteous fury that characterized the battle over Obamacare repeal last summer. And with Kavanaugh’s confirmation hearings scheduled to begin on September 4, Democrats are running out of time to define the candidate on their own terms and make his confirmation anything more than an inevitability. The Times describes the dynamic:
Yet across the country this August, energizing and sustaining on-the-ground opposition to a nominee whom most Republicans and some moderate Democrats have deemed well qualified has been difficult, especially when liberal energy is intensely focused on midterm elections less than 90 days away.
“It’s kind of like, how do we go on? It’s so hard,” Barbara Nelson, a liberal activist from Stanton, Iowa, said after a town-hall meeting in Corning, Iowa, where Senator Charles E. Grassley, chairman of the Senate Judiciary Committee, had met with constituents who were evenly divided over the nomination. “My only hope is that if you just keep saying it often enough, maybe they’ll start believing it.”
Democratic activists insist that there’s still time to pressure key lawmakers. As they attempt to access the reams of documents from Kavanaugh’s decades in Washington — in some cases, over the objections of Republicans, they’re also hoping that some long-forgotten missive in his past will trip him up.
But according to the downright fatalistic Post story, “Democrats have all but acknowledged that they are unable to stop” Kavanaugh from being confirmed. The piece focuses primarily on Collins, who has never voted against a Supreme Court nominee; has shown no sign that Kavanaugh will be an exception to that rule in the face of personal appeals from some constituents; and has dismissed some liberal criticism of him as “overblown.” (Murkowski is putting out similar signals.)
Even if activist energy were running at fever pitch on the ground in places like Maine, it would be very difficult to derail Kavanaugh. That reality may have created a vicious cycle: because the mission is viewed as so hopeless (and because it is more amorphous than the immediate threat of losing health care), voters aren’t bothering to exert the kind of effort that might — just might — change a lawmaker’s mind.
It’s not as if Democrats lack ammunition against Kavanaugh. Though the 53-year-old Beltway insider seems to be personally well-liked by everyone he’s ever met, he holds views that are likely to translate into decisions that hardly reflect popular opinion. For example, he has displayed hostility to the Affordable Care Act that Democrats worked so hard to preserve last year and indicated that overturning Roe v. Wade would be in keeping with his judicial philosophy, and has has shown every sign that he would side with Trump in a possible legal battle against Special Counsel Robert Mueller.
None of this, however, has seemed to translate into much concern from Republican senators.
And there’s another problem: Red-state Democrats up for tough reelections this fall aren’t necessarily feeling the heat, either.
“This process, from my perspective as a senator, isn’t significantly different than what it was on the last Supreme Court nominee,” Missouri Democrat Claire McCaskill told the Post. “Frankly, the calls are about even. Maybe slightly more ‘Vote no.’ ”
If Collins and Murkowski seem locked in to voting yes, Democrats like North Dakota’s Heidi Heitkamp, West Virginia’s Joe Manchin, and Indiana’s Joe Donnelly — all of whom voted for Neil Gorsuch last year, and all of whom face competitive races in November — may buckle in an effort to display their bipartisan bona fides, even though the political wisdom of doing so is far from established.
In the end, Republicans may get their man through by more than just a whisker. Less than a month before Kavanaugh faces four days of questions from the Senate, it looks like it would take a major, unforeseen disaster to prevent him from becoming perhaps President Trump’s most important legacy.