Before the identity of President Trump’s Supreme Court nominee was even known, Sen. Bob Casey (D-Pa.) announced he was voting no. “I will oppose the nomination the president will make tonight because it represents a corrupt bargain with the far right, big corporations, and Washington special interests,” Casey said.
Unlike most Democrats in the Senate, Casey is formally opposed to legal abortion (his actual voting record on the subject is more mixed). His father and namesake was a defendant in the Supreme Court decision upholding most of Pennsylvania’s abortion restrictions, which conservatives and the elder Casey had hoped to use as a vehicle to overturn Roe v. Wade. Retiring Justice Anthony Kennedy had other plans. And now, the senator is running for re-election this fall in a state Trump won, however narrowly. It’s telling that even Casey is reflexively and preemptively opposed to Brett Kavanaugh.
But in some senses, Casey was typical of Democratic politicians and liberal interest groups who clearly just cut and paste Kavanaugh’s name into their statements denouncing Trump’s Supreme Court pick as a reactionary stooge once it was known who the president had chosen. A few tried to spice things up with criticisms more specific to Kavanaugh, suggesting Trump had shifted from trying to find someone who would reverse Roe to instead seeking a booster of untrammeled executive power who would protect him from prosecution in the Russia probe.
The reaction exposes a weakness in the continued liberal outcry over the Supreme Court seat that was supposedly “stolen” from Merrick Garland, former President Barack Obama’s ill-fated nominee to replace the late Justice Antonin Scalia, even as Democrats invoke that precedent to argue for delaying confirmation hearings on any Trump nominee until after the midterm elections.
Perhaps Senate Republicans should have gone through the motions with hearings on Garland, a courtesy some future GOP nominee is now likely to be denied in the escalating Supreme Court wars. But they were never going to confirm him, as was their right under the Constitution. Outside of a tiny sliver of red state Democrats chasing Trump voters this fall, Senate Minority Leader Chuck Schumer’s caucus was always going to vote against whomever this president selected, unless he somehow moved to shore up the liberal bloc.
Whether motivated primarily by overall judicial philosophy, results in cases concerning hot-button issues like abortion, or both, few senators are going to allow a Supreme Court seat to move right to left or vice versa without a fight. And the shift from Scalia to Garland would have been far more consequential than Scalia to Justice Neil Gorsuch or Kennedy to Kavanaugh.
Though some conservatives had hoped for Amy Coney Barrett, most predictably fell in line after Kavanaugh’s nomination became official, just as their liberal counterparts became apoplectic.
But despite the liberal outcry, Kavanaugh is less likely to rock the boat than others on Trump’s list of 25 potential SCOTUS judges. What his nomination means for Roe in particular is the matter of some dispute. This strategic ambiguity may be necessary to move him through a narrowly Republican Senate. GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) don’t want to vote for an unequivocally anti-Roe justice. Sen. Joe Manchin (W.V.), a rare Democrat for Gorsuch, is signaling with his “preexisting conditions” talk that he is looking for some assurances on ObamaCare this time around.
Kavanaugh’s ruling in favor of NSA surveillance against Fourth Amendment concerns has justifiably bothered libertarian-leaning Republicans. Rep. Justin Amash (R-Mich.) has already tweeted his disappointment. Amash doesn’t get a vote, but simpatico Sen. Rand Paul (R-Ky.) does. It is hard to see the Kentucky Republican casting the deciding vote against Kavanaugh, however.
The fate of this Supreme Court seat matters more to the direction of the country on a whole host of issues that people care deeply about than any five Senate seats up for re-election this year. That may not be how the Founding Fathers intended it, but the two parties no longer bother to pretend otherwise. It’s easy enough to see why liberals are upset — but there’s almost nothing they can do about it.
The Week · by W. James Antle III · July 10, 2018