Supreme Court Justices Are The Currency Trump Uses To Keep Republicans Lined Up Behind Him. And He Delivers Big For Them Again.
First of all, Trump’s nomination of DC U.S. Court Of Appeals Judge Brett Kavanaugh to the Supreme Court is not a “Trump thing”. By that we mean Mitt Romney or George W. Bush might’ve very well made the same move. While potentially very disruptive, it’s actually a pretty level-headed decision for Trump, and certainly not one of those moves Trump likes to do that are intended solely to disrupt.
From the legal blogs we follow, it appears Kavanaugh is well-liked and respected, even by judges and lawyers who frequently disagree with his opinions. Which is not the case with Trump’s previous “guy”, Justice Neil Gorsuch, who turns a lot of people off by being just a little too impressed with himself.
Trump was able to check off a couple of important boxes with Kavanaugh: he graduated from Yale Law School and teaches at Harvard. And Trump seems to believe law degrees from Harvard or Yale make someone almost completely unassailable. At the same time, we believe the President’s choice was slightly more nuanced than that.
As Scotusblog points out in the most comprehensive Kavanaugh profile we came across today, nearly half the rulings Kavanaugh’s written in his current position are in the area of administrative law. That’s law related to the operation and scope of influence of federal government departments and agencies. And in most (but not all) cases, he’s written opinions that favor big corporations and deregulation. And he’s become especially known for rulings limiting the scope of the E.P.A.
That’s a huge personal priority for Trump, much more so than overturning Roe v. Wade which we don’t think Trump really cares that much about one way or the other, beyond pleasing his base. You might argue since Justice Kennedy was reliably pro-business, the Court’s decisions in those areas won’t change that radically with his replacement, and instead we’re likely to see hardening up on social issues.
And that may be true. Except keep in mind that with Justice Kennedy’s retirement, the oldest Conservative on the court now is Justice Thomas, who’s 70, while there are two Liberal Justices in their 80s. And with Kavanaugh’s ascent, you’re swapping out a Justice in his 80s for one in his early 50s. Meaning even if Democrats regain both Houses of Congress and the White House, Republicans have now been handed an opportunity that could last for decades: the ability to legislate through the Court by continually challenging any types of new laws or regulations future Democratic majorities or administrations may choose to pass or impose.
Stocks staged a huge rally before Trump’s announcement, even though investors had been genuinely spooked about the President’s growing affinity for trade wars. And even though the market was closed by the time Trump made his announcement, that stock price surge was no coincidence. Because any of the “finalists” on Trump’s list would’ve also solidified what will likely be the most pro-big business court since before the Great Depression. Kavanaugh magnifies that effect.
As the Washington Post reports, Kavanaugh also appears to reliably view Presidential powers as broad, something else that’s likely to have found favor with Trump.
It says a lot that Trump was ultimately willing to nominate someone very close to the Bush family, because Trump’s no fan, and vice-versa. Kavanaugh also played a huge role in Independent Investigator Kenneth Starr’s wide-ranging investigation of President Clinton, which could’ve broken either way in Trump’s mind. But we think this, and other stories coming out of DC that the Far Right was lobbying against Kavanaugh was a bit of a red herring designed to make him appear more centrist than he actually is. Clearly, Kavanaugh’s selection pleases Trump’s base and solidifies his support.
Of course, one of the biggest beneficiaries of a Justice who is almost always on the side of deregulation is the Koch Brothers. That’s their number one priority as they operate their empire centered around chemical plants.
And one might argue Trump didn’t have to make a disruptive move because Senate Majority Leader Mitch McConnell already did, when he refused to schedule a hearing for President Obama’s Supreme Court nominee when Justice Scalia died. Obama’s nominee, Merrick Garland, is the senior Judge on the court Kavanaugh’s getting pulled from.
So Does That Mean Democrats Should Do Everything In Their Power To Fight Kavanaugh’s Nomination? We Think No.
We realize this is the exact opposite of what we advocated when Gorsuch was nominated, which was fight despite the odds. But no matter how we slice it, we don’t see any path for Democrats to come up with the numbers they need. And the timing is completely different.
Yes, on paper only one Republican Senator would have to oppose for Democrats to potentially block the confirmation. But then you have to remember 3 Democratic Senators voted to support Gorsuch. And that was a year and a half ago. And those same 3 are all up for re-election this year. And McConnell will probably schedule Kavanaugh’s confirmation vote about a month before election day. So those same Democrats are gonna vote “no” now? Not likely.
So we may have to think about getting our heads around the idea that out of Trump’s short list of bad choices, Kavanaugh appears to be about the best. And learn to live with the frightening prospect that his confirmation could turn back the clock on progress on social and environmental issues that could easily last for the rest of our lifetimes.
Of course, if that’s not acceptable to you under any circumstances, by all means, get your voices heard. And politicians who have jobs to make the process as full and rigorous as possible — like Senate Minority Leader Chuck Schumer — should do just that.
Beyond that, scheduling the confirmation vote itself so close to the midterms should give Trump and Republicans a little upswing heading into those fall elections. (Which of course is by design.) That effect will only be magnified by Democrats whining and complaining about something they do not have the numbers to stop.