Judges Brett Kavanaugh and Merrick Garland sit on the same distinguished D.C. Circuit Court of Appeals. And they share something else in common politically, beyond their impeccable legal credentials and sound character.
Just as Garland’s Supreme Court nomination failed to energize the Democratic base as expected before the 2016 presidential election, there’s a risk that Kavanaugh will not be the base-booster that Republicans were hoping for in the run-up to the midterms. Kavanaugh is the epitome of an establishment pick, who grew up inside the Beltway and graduated from Yale Law School. He worked for Ken Starr, served as staff secretary for George W. Bush, and in 2006 was nominated to serve on the circuit court. He’s considered one of the top conservative intellectuals on the bench.
That’s a good thing for the Supreme Court, but would give red-state Democrats an opening to run against elitism—and more broadly align with the emerging Democratic midterm message that the Republican Party doesn’t represent the interests of the average Joe on issues like health care.
Make no mistake: The nomination fight still presents more political potholes for Democrats, whose base wants them to pick an all-out fight against a well-credentialed Supreme Court nominee—even though that’s not in the red-state senators’ interests. And Kavanaugh is likely to win support from GOP moderates Susan Collins and Lisa Murkowski—who voted to confirm him previously—making him a very confirmable judge.
But judged strictly on the politics, Kavanaugh offers less of an upside than someone like Judge Amy Coney Barrett, a made-for-TV Catholic conservative who would have fired up Trump’s base and tempted Democrats to beat up on a well-qualified female nominee. Even Judge Thomas Hardiman’s working-class upbringing would have appealed more to blue-collar voters that make up an outsized share of Trump’s base.
With identity politics dominating both parties, the logical political strategy is to pick someone whose biography resonates with your side’s base. Kavanaugh’s sterling intellectual credentials make him supremely qualified, but will Trump voters be drawn to his elite pedigree? Rick Santorum, a Hardiman booster, sounded a glum note after hearing news of Kavanaugh’s nomination, arguing that Trump “bowed to the elite in Washington” with the selection. “A lot of folks in the base were really turned off to Brett Kavanaugh. … He’s from Washington, he’s the establishment, he’s the Bush pick,” Santorum said on CNN Monday night.
In fact, Trump didn’t sound as fired up in picking Kavanaugh as he typically does in pugnaciously picking culture-war battles. On Twitter, he quickly pivoted Tuesday from SCOTUS to challenging NATO allies to spend more on defense.
It’s worth remembering why the Garland nomination failed to energize Democrats before the last presidential election. At a time when issues of race and gender are driving the Democrats’ decision-making process, picking an older white guy with a moderate temperament turned out to be an epic dud.
Democrats like to blame Mitch McConnell for his Supreme Court obstructionism, but the reality is that the Democrats held the political ace card in the judicial showdown. If their own voting base cared enough about Garland’s nomination, either enough swing-state Republicans would have folded under the pressure—or Hillary Clinton would be president today. McConnell simply took a high-stakes gamble that Democrats wouldn’t care enough about a milquetoast Supreme Court nominee, and he won the political battle.
Similarly, Republicans may be getting a little too confident in assuming that the Supreme Court will have the same seismic impact as it did two years ago. Back then, the prospect of a liberal-dominated court looked all too real for conservatives. It’s a lot easier to mobilize a base when they feel aggrieved and disempowered. With Neil Gorsuch confirmed and expectations of a long-term conservative court majority, there will be less incentive for Republicans to turn out—especially if the nominee doesn’t capture the Trumpian base’s imaginations.
For Senate Minority Leader Chuck Schumer, the smart political play is to take a page from Trump’s antiestablishment playbook: Portray Kavanaugh as part of the Washington swamp, and suggest his elite upbringing and conservative judicial record means that he’d be more attuned to corporate interests than protecting the little guy. He’d be wise to avoid aggressively engaging in the culture-war trap of abortion (a fight that has limited value in many socially conservative Senate battlegrounds) or raising the issue of Kavanaugh’s deference to executive power (self-defeating in red states where Trump is still popular).
The risk for Democrats? Their devotion to base-first politics will prevent them from litigating the most effective strategy for their red-state senators. Progressives will want to make the Supreme Court fight all about Roe v. Wade and the party’s anti-Trump fervor will cause partisans to question whether Kavanaugh would protect Trump from prosecution. They’ll need luck cobbling together a consistent message when the Democrats’ vulnerable senators and presidential prospects have vastly different interests.
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