Democrats are lamenting that they did away with the filibuster of judicial nominees, because they cannot now block the appointment of Judge Brett Kavanaugh to the Supreme Court without Republican votes. But that overlooks, I think, a more basic issue.
Historically, both parties believed that Republican presidents have a right to nominate conservative justices, and Democratic presidents have a right to nominate liberal justices. As long as the nominee was objectively qualified, he or she would command broad support in the Senate. Justice Antonin Scalia, for instance, was confirmed 98-0.
That consensus began to fall apart with the nomination of Robert Bork, whom the Democrats opposed, and viciously smeared, on purely political grounds. The Democrats’ shameful smearing of Clarence Thomas a few years later continued the trend.
Republicans began following the Democrats’ lead, although not with the same partisan fervor. 31 voted against Sonia Sotomayor, and 37 against Elena Kagan.
The Democrats’ response to Judge Kavanaugh’s nomination has taken partisanship to a new level. They don’t seriously pretend to have any good reason to oppose Kavanaugh, who is widely praised by liberal jurists and scholars. They simply don’t want him on the Court for political reasons. Their reaction to anyone else a Republican president might nominate would be the same. Just imagine if President Trump had chosen Amy Coney Barrett!
If the Democrats vote en bloc against Kavanaugh, we will have reached the logical end point of the process they began with Robert Bork’s nomination. Supreme Court nominations will have been reduced to a purely political matter. Happily, though, unless a Republican Senator defects, the Democrats will lose.
Have the Democrats thought about what comes next? It is entirely possible that we could have a Democratic president as soon as 2021. That president, or any subsequent Democratic president, most likely will make at least one Supreme Court nomination. Perhaps the Democrats will control the Senate at that time. More likely, they won’t. The Republicans have an institutional advantage with respect to control of the Senate because there are quite a few more red states than blue states. The Democrats’ voters are too concentrated in California, New York and Illinois.
The GOP has managed to squander that advantage at times by nominating some terrible candidates, but over time, for the foreseeable future, the Senate is more likely to be in Republican hands than Democratic. If Democrats are determined to bring hyper-partisanship to Supreme Court nominations, refusing to vote for any nominee they wouldn’t have chosen themselves, Republicans can play the same game.
If, in voting on the Kavanaugh nomination, the Democrats set the precedent that Supreme Court votes are nothing but tests of raw political power, Republicans should–and probably will–take the hint. Future Democratic presidents usually will not be able to confirm a Supreme Court appointment without Republican votes. If Democrats are willing to vote as a bloc on purely political grounds, Republicans can do the same. Which will render impossible, while Republicans control the Senate, the appointment of any liberal Supreme Court justice.
This wouldn’t be a bad outcome. An asymmetry exists here: liberal justices want to change the world by imposing left-wing policies on the rest of us by undemocratic means. Conservative justices just want to apply the Constitution and the laws fairly. So a world in which there are few or no liberal justices will be healthier politically, and much closer to what the Founders intended.
This is why I hope that all, or nearly all, Senate Democrats vote against the obviously qualified and quite moderate Brett Kavanaugh. Doing so will set a precedent that Republicans can follow next time we have a Democrat president.
UPDATE: What’s a post without a cartoon? Michael Ramirez thinks the Kavanaugh nomination is a slam dunk. He’s right, of course, in a sane world. Note the weirdly attired Dems. I think Michael refers to the “Handmaid’s Tale” hearing crashers that I ridiculed here. Click to enlarge:
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