Dick Durbin’s Supreme Sacrifice – WSJ

Dick Durbin’s Supreme Sacrifice – WSJ.

By William McGurn
July 9, 2018 7:05 p.m. ET
In Tennyson’s hands the light brigade’s disastrous frontal assault on Russian troops in the Crimean War produced some stirring verse. But suicidal charges are less advised for political parties. So it’s startling to hear a high-ranking member of the Democratic leadership call on the most vulnerable members of his own party to march into their own Valley of Death for the sake of rejecting Donald Trump’s pick to replace Anthony Kennedy on the Supreme Court.

Mr. Durbin pitched his charge on Sunday’s “Meet the Press.” The Illinois Democrat acknowledged that the resistance he is proposing could mean a smaller Democratic minority in the Senate.

Host Chuck Todd put it to Mr. Durbin this way: “Staying united to stop the Supreme Court pick could cost you red-state senators. Not fighting it as hard might allow the red-state senators to get re-elected and get Democrats in control of the Senate. That’s your dilemma.”

Sen. Durbin replied as follows: “It is a dilemma in one respect but not in another. I will tell you, the men and women that I work with on the Democratic side really take this seriously. They understand it’s an historic decision. It’s about more than the next election. It’s about what country the United States of America is going to chart as its course in the future on this Supreme Court. I think each and every one of them take that seriously, that personally. It goes beyond the next election.”

In the most limited sense, Mr. Durbin may simply be saying that the Supreme Court matters to Democrats. Trump voters made the same point in 2016: In exit polls, 26% of those who voted for Mr. Trump said that nominations to the high court were the most important factor in their decision.

What makes Mr. Durbin’s call so striking is his frankness about the losing position his party is in. He recognizes that what his party is gearing up to do—wage an all-out war on Brett Kavanaugh (on Monday Nancy Pelosi sent out a fundraising letter saying she will “avenge” Barack Obama by opposing Mr. Trump’s then unannounced nominee “if it’s the last thing I do”)—may prove unpopular enough to cost some red-state Democratic senators their seats come November. Ten Democratic incumbents are up for re-election in states Mr. Trump carried. Three of them— Heidi Heitkamp in North Dakota, Joe Donnelly in Indiana and Joe Manchin in West Virginia—voted to confirm Neil Gorsuch last year. Claire McCaskill is likewise vulnerable in Missouri though, unlike the other three, she voted against Justice Gorsuch.

Now, it’s one thing for a gadfly such as Rand Paul or Bernie Sanders to be willing to give up seats. It’s another when such talk comes from the Senate minority whip. In effect, Mr. Durbin is admitting that a Supreme Court that limits itself to the law and Constitution—calling “balls and strikes,” as Chief Justice John Roberts put it during his own confirmation hearing—means a dead end for causes Democrats cherish but have given up trying to achieve through the democratic process, a k a passing legislation.

Mr. Durbin is making clear that more-moderate Democrat incumbents will be dragooned into the party’s war with Mr. Trump over the Supreme Court whether they can afford to or not. No doubt this approach resonates with the party’s donors and its activist wings in New York and California. But it won’t play as well in the red states where the most vulnerable Democratic senators are now fighting for their political lives.

“Resist!” is a catchy slogan. But absent the actual votes in the Senate to prevail, what it will really mean is more TV footage of more angry protests and rude confrontations. Just this past weekend a mob outside a Kentucky restaurant surrounded Sen. Majority Leader Mitch McConnell as he walked to his car and jeered, “We know where you live.” Do Democrats really believe that this is the way to generate the Senate votes they need—or endear the American people to their side?

“For vulnerable Democrats running for re-election, Durbin’s message is that this is a you’ll-never-eat-lunch-in-this-town-again vote,” says Steven Law, president of the Senate Leadership Fund. “And that a vote to confirm the president’s nominee will be treated by party activists as an act of treason.”

Even if Sen. Durbin’s strategy were to work as he’s laid out—say, two Democratic seats sacrificed, but Mr. Trump’s nominee rejected—it won’t really be a victory. As soon as the Senate reconvenes in January, the president would send up a new pick to a Senate with fewer Democratic votes. Republicans would have a working majority for the rest of Mr. Trump’s term even if Sens. Lisa Murkowski and Susan Collins went rogue.

For Democrats, following Sen. Durbin into war is the “Charge of the Light Brigade” without the poetry. When the smoke clears, Mr. McConnell will get Judge Kavanaugh confirmed and could even end up with a larger GOP majority.

Write to mcgurn@wsj.com.

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