Wisdom from a man who once perfectly summarized pre-Franken (and post-Franken?) Democratic attitudes to #MeToo matters when it’s their guy who stands accused: “If you drag a $100 bill through a trailer park, you never know what you’ll find.”
I agree with his point in the clip below, though, and said as much on Friday, when Susan Collins’s intentions were momentarily a mystery. Forgive me for the self-quote:
Whichever way she ends up going, remember there are silver linings for the losing side. If she and Manchin vote no, guaranteeing a party-line Democratic vote in opposition, there’s a real chance that the backlash from angry Republicans will tilt some tight House and Senate races towards the GOP this fall. We might wake up in January with 54 or 55 seats in the Senate and new nominee Amy Coney Barrett on a glide path to confirmation. If she or Manchin vote yes, the same sort of anger on the left might tilt those close races towards Democrats in November. They may hold the majority in the Senate in January, all but ensuring that Trump will fill no further SCOTUS vacancies during his term. And they’ll have a new Republican justice on the Court whom they can smear and delegitimize for the next 25 years, up to and including the possibility of impeachment by a Democratic House. It’s been lost to some extent in the big national melee of the past few weeks that Kavanaugh getting confirmed is not the worst-case scenario for Democrats. A redder Senate and a new nominee with no red flags against him/her is the worst-case scenario. They’re way better off with a damaged conservative being successfully added to the Court, damaging the conservative majority there by extension, than with borking him and then watching Republicans easily confirm a much less damaged replacement.
Realistically, the only scenario for lefties that was better than damaging the nominee before inevitably losing a confirmation fight in which they were outnumbered would have been to bork him successfully and then win back the Senate. Borking him would have done them no good, and actually would have backfired in multiple ways, unless they wrested control of the chamber from McConnell this fall. Then they could have roadblocked anyone Trump nominated in Kavanaugh’s stead next year.
But that “realistic” scenario isn’t very realistic. Even with a blue wave shaping up in the House, Nate Silver’s FiveThirtyEight site gives the Dems just a one in five chance — 21.4 percent as I write this, to be exact — to take the Senate. And with Heitkamp and Bredesen beginning to slide in the polls amid a Kavanaugh backlash, even those odds might be on the way down. If Republicans are destined to control the chamber next year then Dems are better off with a weakened establishmentarian like Kavanaugh than with a scandal-free conservative like Amy Coney Barrett.
Law prof Noah Feldman floated an interesting possibility over the weekend. Will the scorched-earth campaign against Kavanaugh lead him to side with conservatives on the Court more often than he would have if the Ford saga hadn’t happened? Feldman thinks so:
Part of the appeal of being a Supreme Court moderate is that while one side may be frustrated with you after any given decision, you receive positive feedback from the other. But, in the short term at least, there can no prospect of positive feedback from liberals, no matter how Kavanaugh votes. He could start voting like Justice Sonia Sotomayor, and liberals would still see him as a sex offender who got onto the court by deceit. He thus will have no psychological incentive to do anything other than vote with the conservatives.
Nor will liberals be able to court him, as they did Kennedy…
Now that more than 2,400 law professors have signed a letter saying Kavanaugh’s temperament disqualifies him from serving on the court, all but a handful of far-right law schools are going to be no-go zones for him for years. If he can’t even visit, he can’t be wooed.
Could be, but that smells self-serving to me. It starts with the premise that Kavanaugh is a political hack whose reading of the Constitution and federal statutes will now be driven increasingly by partisan tribalism rather than by his honest understand of the meaning of the law. You can counter that by claiming that Feldman isn’t saying Kavanaugh will do this deliberately, just that it’s basic human psychology to want to ingratiate yourself to one group of people when the rival group despises you. (You can also counter it by noting that Kavanaugh invited these suspicions with his angry, partisan opening statement at the Ford hearing.) Conveniently, though, that leaves him and his supporters unable to falsify Feldman’s point. If Kavanaugh rules against the left in a momentous decision, as was very likely to happen anyway, his opinion can now be dismissed as a matter of illegitimate partisan allegiance rather than him simply being a judicial conservative. To put it in context, remember where some close legal observers placed him on the Court’s ideological spectrum after he was first nominated in July:
More conservative than Scalia replacement Neil Gorsuch, not far from the Court’s most right-wing justice, Clarence Thomas. Feldman’s argument is a way of preemptively discrediting decisions Kavanaugh likely would have arrived at anyway via originalism by framing them as some sort of political favor to Trump or score-settling with Democrats. Which I note is a bit of a theme in left-wing political writing today. The delegitimization campaign has begun.