Since the announcement of Supreme Court Justice Anthony Kennedy’s retirement on June 27th, prominent democratic senators such as Corey Booker LAW ’97, Kamala Harris, and Senate Minority Leader Chuck Schumer have opposed the nomination of any replacement justice until after the 2018 midterms. With the news on July 9th that President Donald Trump has nominated Brett Kavanaugh ’87 LAW ’90, democrats have been opposing Mr. Kavanaugh more specifically as a nominee, but the confirmation battle will inevitably unearth the sore wound at the core of democrats’ opposition to a swift vote: Senate Republicans’ successful delay of a vote on Judge Merrick Garland to fill the seat left vacant by Antonin Scalia’s 2016 death.
I’m empathetic to these sentiments as emotional responses: terror at the prospect of a court ruled by iron-clad conservatives, vengeance for Senate Republicans’ seedy tactics. But politically, pushing this line of reciprocity is the worst choice Democrats could make in response to Kennedy’s retirement and Kavanaugh’s nomination, potentially destroying their chances at preserving some power in the judicial and legislative branches.
Minority Leader Chuck Schumer has said that Republicans should “follow the rule they set in 2016 not to consider a Supreme Court justice in an election year,” a tactic that some are already calling the McConnell Rule.“Anything other than that,” Schumer has said “would be the absolute height of hypocrisy.” He’s right. But it’s also hypocrisy for Democrats to embrace as a “rule” the wait-till-next-January strategy they so decried when the ball was in the other court. If Democrats continue this push, the issue of hypocrisy becomes circular. In this case, the blame game is likely to just be perceived by each side based on partisan priors, appealing democrats to their voters who already turn out in droves, and only drawing accusations of sore-loser syndrome from across the aisle.
This is especially the case given that Mitch McConnell has pushed the vapid argument that the present case is different than the Scalia-Garland precedent, as it’s now only a midterm year. The logic is that Republicans wanted to delay in 2016 because of the lame-duck nature of the president, not the lame-duck nature of then-Congress. But this is splitting hairs to justify an argument that is vacuous at the root: we elect Presidents with the expectation that they will be the one appointing new justices until the end of their tenure, and we similarly elect senators understanding that they will have the ability to vote on these nominations until their term expires. Nevertheless, it gives Republicans cover to hold democrats to a double standard, while the democrats lack the same (however false) legitimation narrative for their vengeful instincts. What the democrats miss by embracing the dodge-the-vote mentality is the ability to appear above the partisan fray and appeal to crucial swing voters sick of Washington’s excessive partisanship. In midterm elections, where turnout can be low, the optical boost of taking the high road could boost democrats’ chance at a congressional takeover.
Democrats risk losing their shot at the legislature through advocating a delay of confirmation for a related reason: as Nate Silver points out at 538, Democrats currently benefit from an “enthusiasm gap” with respect to the midterms. Whereas Republicans may foster a sense of complacency, liberals who lay slack-jawed by the 2016 election may feel an increased urgency to vote. Even though democrats are unlikely to succeed in stalling the confirmation, their attempts to do so (or even the rhetoric suggesting it) may remind conservatives of just how close the Senate’s current margins are—51-49 Republican to Democrat—compelling higher turnout. And if Democrats somehow succeed in stalling until November, the lack of an appointed justice could become a rallying cry for Republicans. While a conservative justice being swiftly appointed is hard to stomach, the sentiment among conservatives that they have shored up all three branches of government might be exactly what democrats need to thrive in the midterms.
And success in the midterm isn’t just vital for Democrats to launch a legislative resistance to Trump; it may further influence the Supreme Court. Ruth Bader Ginsburg is 85; Stephen Breyer, 79. Two more years of a Republican senate under Trump (not to mention the possibility of Trump’s reelection) could mean as many as 7 out of 9 justices swinging conservative.
The alternative to the Block the Vote rhetoric is not mere complacency. Senate Democrats should take on considerably subtler and less sexy work. This means tough questions at confirmation hearings–and not of the “gotcha” sort that lends itself to easy soundbites. A confirmation hearing is unlikely to unearth any proverbial skeletons from Kavanaugh’s closet if they do exist. Assaults on Mr. Kavanaugh’s character are unlikely to switch the votes of moderate Republicans like Susan Collins (R—ME) and Lisa Murkowski (R—AK). However, establishing whether Kavanaugh is, say, willing to overturn Roe, could sway these senators; Collins, at least, has publicly indicated that overruling Roe is a dealbreaker.
The same logic applies to Democratic senators running in conservative states. North Dakota’s Heidi Heitkamp, Indiana’s Joe Donnelly, and West Virginia’s Joe Manchin all voted for Neil Gorsuch in 2017. If Democratic senators dig for conspiracy, conservatives would inevitably frame it as a partisan witch-hunt in a bid to galvanize a pro-Trump base. Fearing such an upswing, these democrats may be more fearful of casting a no vote the more caustic the confirmation battle becomes. Conversely, exposing something like opposition to Roe could spur democrats to vote in these Red States, both making Democratic control of the senate more plausible and encouraging Heitkamp, Manchin, and others to vote “no” to win over their bases.
Senate Democrats aren’t necessarily acting irrationally in pushing the tactic of delay. My estimation is that it’s more likely a collective action problem: Senators like Harris, Booker, and Schumer come from solid blue states; taking a hardline position just shores up enthusiasm among their constituencies’ many democrats. But it poses externalities for the Democrats from purple or red states who will rely on swinging independent voters and low Republican turnout to win narrow elections in November. These are the senators who will decide whether the senate goes blue or red. The rhetorical strategy of delaying the nomination is thus indicative of a larger problem for Democrat politicians–the ability to look beyond self-interest for party-interest, and to unify a party sometimes defined often by what it doesn’t support around shared programmatic interests.