Trump's Supreme Court Nomination by Tom Carson for Playboy
Anthony Garand

Opinion

Using Roe v. Wade to Block Brett Kavanaugh Is a Half-Baked Strategy

The Donald J. Trump who introduced Supreme Court nominee Brett Kavanaugh to the nation last night was Trump at his most relatively dignified and presidential. In other words, Trump at his most robotic and least Trumpian. This is almost always a signal of indifference, which we know sounds perplexing. Didn’t he himself acknowledge that choosing a SCOTUS candidate is among the most consequential decisions the Oval Office’s occupant can make?

Sure he did. But more blatantly than any previous president, he’s never given a damn about decisions whose consequences will outlive him, radiating a nihilist’s blithe confidence instead that the world will end when he does. The odds are very good that he couldn’t care less what Justice Kavanaugh, if confirmed, will do to the court or the country down the road. For the second time in a row, he’s given the GOP establishment he otherwise scorns exactly the SCOTUS nominee it wants, which amounts to bribing them to keep on tolerating and indeed enabling the pandemonium he creates elsewhere.

Trump’s only deep-seated, as opposed to transactional, interest in the Supreme Court is the possibility that it will end up sitting in judgment on his own legal woes. On this count, Kavanaugh’s paper trail is reassuring; he’s argued that sitting presidents shouldn’t be subject to “distracting” lawsuits and criminal investigations, and generally takes an expansive view of Executive Branch prerogatives. If he ends up being the key vote in overturning Roe v. Wade or restricting gay rights in the bargain, that’s certain to please Trump’s base. But practically nobody believes that Trump himself has any serious investment in those causes on any other grounds, because he never does on any issue that doesn’t affect him personally.

Significantly, Trump’s major objection to Kavanaugh before giving in was that he was too closely tied to the Bush dynasty—the ultimate Establishment bona fide, but anathema in MAGA-land for that very reason. Among the also-rans, Amy Coney Barrett would probably have thrilled Trump’s base more, since her hardcore social conservatism is unabashedly rooted in fierce religious belief. “The dogma lives loudly within you, and that’s a concern,” Senator Dianne Feinstein famously told Barrett during her Court of Appeals confirmation hearings last year, drawing rebukes for ineptly stating the obvious.

Kavanaugh is a much more comfily suburban sort of Catholic, which doesn’t necessarily mean his own dogma comes equipped with a mute button. If he’s confirmed, Catholics will outnumber non-Catholics on the bench by six to three, which is demographically screwy but—Sonia Sotomayor aside—a reliable badge of staunchly right-wing views.

Even before Trump announced his choice, Senate Democrats and liberal groups were gearing up for a confirmation battle that they’re virtually certain to lose. Like the realist he is, Senate Minority Leader Chuck Schumer may not even mind losing it all that much—not if a vote in Kavanaugh’s favor is the price of re-election for the three vulnerable Democrats from deep-red states (West Virginia’s Joe Manchin, North Dakota’s Heidi Heitkamp, and Indiana’s Joe Donnelly, all of whom broke ranks to vote for Neil Gorsuch last year) that Schumer needs to sustain any hope of regaining the Senate majority come November. Because Kavanaugh will likely be a lot silkier than Barrett would have been about affecting to believe that Roe v. Wade is settled law, peeling off the GOP’s two pro-choice female senators, Alaska’s Lisa Murkowski and Maine’s Susan Collins, will probably be a futile struggle.

Liberal activists have never had an easy time getting their lackadaisical base to see Supreme Court nominations as all that crucial, unlike right-wingers.

Besides, making Roe v. Wade the central reason to stop Kavanaugh may not be a great strategy. Even though two-thirds of Americans say they don’t want it overturned, that doesn’t mean they’ll be especially passionate about defending it—not in sufficient numbers to generate the popular outcry Schumer wants to stir up. No matter how paradoxically, liberal activists have never had an easy time getting their lackadaisical base to see Supreme Court nominations as all that crucial, unlike right-wingers, for whom they’re the whole ball game.

What would be a great strategy, though? Abortion rights may be the ultimate hot-button issue in both camps, but that aside, a solidly 5-4 conservative SCOTUS majority is sure to pursue the GOP donor class’s agenda of favoring corporations and the wealthy while steadily eroding everyone else’s protections and rights. Yet that scenario is too amorphous to most people to generate the opposition it should, which is why Schumer has to keep ringing the Roe v. Wade alarm bells instead, and ineffectually, most likely. The last successful defeat of a Supreme Court nomination in the Senate was Robert Bork’s in 1987, and Bork’s rejection had less to do with his extreme views than his alarming personality. Republicans have taken care to pick relative smoothies ever since.

Still, it’s no wonder that Kavanaugh seized the chance to humanize himself for America’s benefit while thanking Trump for nominating him; after all, it’ll be his last opportunity to do so before spending a season as a piñata. As for Trump, he couldn’t care less if Kavanaugh was Mork from Ork, so long as he can notch up a big win to brag about at rallies. It doesn’t cheer us up much to say so, but as of now, we’re betting he’ll get one.

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