The big show last night turned out to be even less melodramatic than the low bar hoped for by Democrats. None of the picks on Trump’s shortlist were all that controversial, though one might argue that Amy Coney Barrett’s short tenure on the bench was a cause for concern. But still, despite the fact that there will always be some grumbling from the peanut gallery, Brett Kavanaugh was easily a solid choice for the President to make because he comes with some insurance policies baked into the cake.
The Democrats are obviously going to oppose Kavanaugh almost entirely across the board and will try to make life difficult for him during the coming confirmation hearings, but they’ll have questions to answer in terms of how hard they want to hit him. One of the first entries in the hurdles they face came almost immediately from Yale Law School professor Akhil Reed Amar, writing at the New York Times, A Liberal’s Case for Brett Kavanaugh.
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.
Ouch. When a Yale Law professor and Hillary Clinton supporter comes out of the gate with that sort of praise, liberals are walking on quicksand if they try to paint Kavanaugh as a monster. If anything, it should be conservatives who get nervous, wondering if another David Souter has just slipped under the flaps of the tent.
From the conservative side of the aisle, Professor Glenn Reynolds found Kavanaugh to be the “safe pick” with a “gold-plated resume.”
After more than the usual buildup, orchestrated by a master of reality TV, President Trump has chosen his nominee for the Supreme Court seat being vacated by Anthony Kennedy. And he’s playing it safe.
Trump’s pick, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, is a graduate of Yale Law School, has taught at Harvard, Yale, and Georgetown, and served in President George W. Bush’s administration before being named to the Court of Appeals. Like Trump’s prior nominee, Neil Gorsuch, Kavanaugh has a gold-plated resume and Federalist Society credentials. And, also like Gorsuch, he’s a former law clerk to Justice Kennedy. (And he was hired to teach at Harvard Law School by then-Dean, now Justice, Elena Kagan).
What is it that really makes Kavanaugh the “safe bet” for Trump? There’s probably no bigger factor than the presumption that both Susan Collins and Lisa Murkowski are going to be comfortable with him. And if the President can lock down those two votes in the Senate, everything the Democrats do or say will be entirely sound and fury, signifying nothing.
Some of the early reactions coming from the cable news talking heads make it sound as if the Democrats are out of luck as well. I tuned into Morning Joe this morning, fully expecting to see Joe and Mika rending their clothing and wailing about the end times but it was nothing close to that. They were treating the pick as almost a done deal. A few exceptions cropped up, such as the paper Kavanaugh wrote in 2009 in which he suggested that sitting presidents shouldn’t be open to investigations and trials. Scarborough picked up on that, asking if Kavanaugh would assure Senators that he would recuse himself in any case that involves investigations into the President. (That’s a fairly ridiculous suggestion since the judge has never been involved in a specific case relating to Trump.)
But that doesn’t mean that the Democrats are going to bow out without putting on a show. Joe and Mika brought on Jim Vandehei, who said Democrats would be “crazy not to… try to bring this guy down.” But is that really the case? There are at least three red-state Democrats who may be facing a choice of either voting for Kavanaugh or surrendering their seats to the GOP (assuming they can hang onto them at all). Will Chuck Schumer really put the whip to Heidi Heitkamp, Joe Donnelly, Claire McCaskill or Joe Manchin to vote against Kavanaugh? If he does and some of them go on to lose their seats, Schumer would need to start watching out for his own security in the Senate Minority Leader office.
If everyone can just manage to resist the urge to form up the GOP circular firing squad, this should really be a done deal at this point. Let the Democrats put on their show over the summer and then schedule a vote. It really doesn’t have to be any harder than that.