California Forum

Should Democrats even bother to fight Brett Kavanaugh’s Supreme Court nomination?

Sen. Lindsey Graham, R-S.C. (right) with Brett Kavanaugh, U.S. Supreme Court associate justice nominee, during a meeting on Capitol Hill in Washington on July 11, 2018. MUST CREDIT: Bloomberg photo by Yuri Gripas.
Sen. Lindsey Graham, R-S.C. (right) with Brett Kavanaugh, U.S. Supreme Court associate justice nominee, during a meeting on Capitol Hill in Washington on July 11, 2018. MUST CREDIT: Bloomberg photo by Yuri Gripas. Bloomberg

Will it really matter if Judge Brett Kavanaugh is confirmed to replace Justice Anthony Kennedy? Both are conservative Republicans and in the vast majority of cases each would vote the same way.

For example, both would vote to strike down laws limiting corporate spending in election campaigns and to invalidate many restrictions on guns as violating the Second Amendment. Both are very pro-business and consistently favor business interests over those of consumers and employees.

The most important consequence of replacing Kennedy with Kavanaugh is substituting a 53-year-old conservative for one who is about to turn 82. This would mean that this seat on the Supreme Court will be held by a conservative likely for the next 30 or more years.

The Democrats hope must be that they can block Kavanaugh’s confirmation or even stall it until after the November 2018 elections and that the Democrats then will take control of the United States Senate. If the Democrats do this, they will not confirm anyone President Donald Trump nominates in the last two years of this term in office. This, of course, is exactly what the Republicans did in refusing to hold a hearing or a vote on President Barack Obama’s nomination of Chief Judge Merrick Garland for the Supreme Court.

Blocking Kavanaugh will be a pyrrhic victory if Republicans keep control of the Senate after the November 2018 elections. Trump surely then would nominate someone just as conservative to replace Kennedy.

History shows that it is worth the Democrats trying to defeat Kavanaugh. In 1987, Justice Lewis Powell, then widely perceived as being the swing justice on the court, announced his retirement. President Ronald Reagan nominated D.C. Circuit Judge Robert Bork to replace Powell. Democrats defeated Bork’s nomination and Anthony Kennedy was then nominated for this seat on the Supreme Court. Five years later, Kennedy cast the fifth vote to reaffirm Roe v. Wade and to limit school prayer, something Bork publicly declared that he would not have done.

Can the Democrats repeat this with Kavanaugh? The challenge is much harder.

In 1987, Democrats controlled the Senate and the key to blocking Bork was convincing Southern Democrats, like Georgia Sen. Sam Nunn, to vote no.

Now, the Senate is controlled by Republicans. With Sen. John McCain likely too ill to vote, the Democrats need to convince one Republican Senator and all of the Democratic Senators, including several who are up for reelection in red states that Trump handily carried in 2016, to vote no.

Taking control of the Senate in November requires that the Democrats capture two seats now held by Republicans and keep all of the current seats held by Democrats who are up for reelection. Many of these are in states – like Indiana, Missouri, Montana, North Dakota, and West Virginia – that Trump won in 2016.

Is it worth it then for the Democrats to invest so much energy in a fight that is a long-shot? I think so.

In part, this is because the stakes surrounding this seat on the Supreme Court are huge. Although Kennedy usually sided with the conservative justices, there are a number of areas in which he joined with the four liberal justices to create a majority: abortion rights, affirmative action, gay and lesbian rights, and limits on the death penalty.

Also, opposing Kavanaugh is a way for the Democrats to mobilize their base and remind them of the importance of the courts as a voting issue. Republicans have perceived this far more than Democrats.

Of those who voted for Trump, 56 percent said that the Supreme Court was the most important factor in their choice for president, but only 41 percent of those who voted for Hillary Clinton said this.

There is absolutely nothing objectionable about Democrats trying to block Kavanaugh because of his conservative ideology. Picking Supreme Court justices is not left to the sole discretion of the president.

Under the Constitution, the Senate must confirm and it owes no deference to the president, as the Republicans reminded everyone when they blocked Garland’s confirmation. Trump selected Kavanaugh because of his very conservative views and record as a judge; there is a reason that he was at the top of the Federalist Society’s list and has been lavishly praised by conservatives. It is equally appropriate for the Senate to reject Kavanaugh because of those views.

The odds strongly favor Kavanaugh’s confirmation, but the Democrats are wise and right to do all they can to block it.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

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