The first, last and best reason to fight tooth and nail against the nomination of Brett Kavanaugh to the Supreme Court is that it is not rightly President Trump’s nomination to make.
Yes, Kavanaugh is very conservative and no, I don’t like that. Staring down the barrel of the next several decades under a Roberts-Thomas-Alito-Gorsuch-Kavanaugh court, I am just as likely as the next liberal to lose my cruelty-free lunch. But under normal circumstances, them’s the breaks: a president who holds very right-wing views (or who is beholden to those who do) gets to nominate judges who hold very right-wing views. The same, of course, goes for the left and whatever may remain of the center. Absurd and alarming though it may seem – and always does seem to the out-of-power party -- the ultimate law of our land is literally a function of who happens to die or retire when. Under normal circumstances, absent a manifest lack of qualifications or evidence of some serious personal failing, the Senate is, in my view, constitutionally bound to voice its concerns (advise), then pretty much swallow them with a vote to confirm (consent.)
Have you noticed? These are not normal circumstances, and for once, Donald Trump is not the main reason why. These are distinctly Mitch-McConnell-made circumstances; in other words, circumstances sewn solely out of one lamentably-powerful man’s impulse not merely to put party over country, but to put party leader (himself) over country. When Antonin Scalia had the temerity to leave this life well before Barack Obama left office, McConnell simply invented a constitutional loophole whereby the Senate need not vote on a Supreme Court nomination made by a president in the final year of office. He did this presumably because Merrick Garland, the nominee set forth by Obama, was so unassailable on the merits, at least some Republicans would end up voting for him. Then, of course, came the presidential election of the last man on earth who would put the outrageousness of McConnell’s action together with his own loss of the popular vote and conclude that a true compromise pick, if not Garland himself, was in order. Nope, Trump proceeded to pick Neil Gorsuch off a list of judges thrilling to his base and his base alone. And now, far from figuring that he has kept his promise to his pet third of the country and now maybe ought to think about some other people, he’s trying to do it again.
No. No. No no no no no no no no no no no.
Bear in mind, I count myself among the last of the civility Mohicans. Even – no, especially -- in the face of the verbal, physical and moral repugnancy that the President of the United States has seen fit to personify and promote, I just can’t wrap my mind around the proposition that the real trouble in this country today is insufficient personal nastiness. No matter how much Twitter may taunt me, I am just not going to applaud language or behavior in adults – whatever their politics -- that I would punish in my child. So, much as I might share the impulse, I hope that Democrats won’t bring their dogs to dump on Mitch McConnell’s lawn. But I absolutely insist that Democrats drain the sewage in which the Majority leader has submerged the Senate. This can only be done by reclaiming one, and only one, Supreme Court nomination from the right.
Thus, at its core, the fight against Brett Kavanaugh must not be about Brett Kavanaugh.
Nor, God forbid, must it be about adapting McConnell's constitutional contortions to Democratic purposes. Let's please, please forget these budding arguments to the effect that Trump should not be able to nominate in a congressional-election year, which lends retrospective credence to the completely credibility-free notion that Obama should not have been able to nominate in a presidential-election year. No! Back to the constitution before McConnell mangled it: Office holders can and must carry out their constitutionally prescribed duties until they leave their jobs, or at least until they've already been voted out of of their jobs. By that definition, Democrats were cheated of one Supreme Court nominee, by dint of which they deserve more leverage over the next Supreme Court nominee and hell will rightly rain on Republicans until they get it.
Look, I'm not wishing for Washington furies to unleash themselves on Kavanaugh. I have no doubt he is intellectually brilliant, personally nice and ideologically appealing to the people who should have the right to drive this decision. I also don’t care. The people who should have the right to drive this decision do not have it, because in 2016, they forfeited it. Having crumpled up, spat upon, and tossed the constitutional prerogative of one president straight out the window, they have vastly expanded the grounds upon which all Americans should feel compelled to scream like stuck pigs at their attempt to defend the constitutional prerogative of the next president. Thanks to ole Mitch, all bets, all norms, all gloves, are off. The president either chooses someone acceptable to both parties, or the opposition party must do everything possible to block his choice, whoever it is.
Now, will “everything possible” include successfully keeping Kavanaugh from being confirmed? I am guessing not. I am guessing that Kavanaugh’s past statements deeming Roe v. Wade to be “binding precedent” will probably give Susan Collins and Lisa Murkowski the cover they need to vote “yes”. It further seems likely that some, if not all, of the embattled Democratic incumbents from South Dakota, West Virginia, Indiana and Missouri will end up doing the same. So, barring a miracle, “Associate Justice Kavanaugh” does seem to be a phrase soon to enter the lexicon.
Nonetheless, some miracles are worth making, and this is one. It is worth calling, marching, organizing, funding, fighting on every front to defend the principle that the ruling party in Congress does not get to flip off a signal power accorded a president it happens to dislike. It is worth being hit with supremely hypocritical charges of “playing dirty” – for it will be nothing of the kind.
Unless and until the Garland wrong is made right, fighting a Republican Supreme Court nominee for the sake of fighting a Republican Supreme Court nominee will be the very opposite of playing dirty. It will be scrubbing a shamefully soiled process clean.