It would be easy to dismiss the left’s performance at the hearings to confirm Judge Brett Kavanaugh as a justice of the U.S. Supreme Court. The seemingly obligatory chorus lines of dystopian “handmaids,” shrieking C-list celebrities being removed by security guards, senators who have already announced their opposition demanding more documents, the faux martyrdom of Sen. Cory “Spartacus” Booker threatening to leak material already cleared for public release—it all seems pathetic, desperate, and futile.
For some, laughter is the only response to the platoon of Pagliaccis piling out of the clown car to sob uncontrollably in the center ring of their political circus. But perhaps we should take a moment—if only a moment—to stand in their floppy shoes.
After all, the February 2016 death of Justice Antonin Scalia suddenly elevated the issue of judicial nominations to a level arguably not seen in half a century, especially for Republicans. Senate Majority Leader Mitch McConnell blocked filling the vacancy with President Obama’s lame-duck nominee.
This was a gamble. If a Democrat had won the presidency, Obama almost certainly would have pulled his nomination of Judge Merrick Garland so Hillary Clinton or Bernie Sanders could nominate his or her own choice—one almost certainly to the left of Garland. Undoubtedly, McConnell and the rest of the establishment GOP viewed it as an even bigger gamble once Donald Trump became the Republican presidential nominee.
Moreover, Trump won the Republican nomination in substantial part because of his dramatic pivot on judicial nominations, especially for the Supreme Court. He once spoke cavalierly of nominating his sister, who is not seen as a particularly conservative jurist, to our nation’s highest court.
Seeing the reaction to Scalia’s passing, Trump promised to nominate justices from a list compiled by future White House Counsel Don McGahn (not to mention Leonard Leo and the Federalist Society). “The List” was an unprecedented move in presidential politics, designed to bring distrustful Republicans to Trump’s side, or at least blunt their opposition during the primaries. It became a prime argument on Trump’s behalf on talk radio and in opinion columns seeking to reassure conservatives that there was something in a Trump candidacy for them.
“The List” also supported more apocalyptic arguments for Trump’s candidacy. When “Publius Decius Mus” (Michael Anton) wrote of 2016 as “The Flight 93 Election” requiring someone, even Trump, to wrest the controls from Clinton, it had a special resonance among social conservatives alarmed by the attacks on religious liberty gaining steam during the Obama era.
Religious liberty and abortion may be the only issues that could have moved social conservatives to vote for a man who is not a religious conservative or moral exemplar, to put it mildly. “The List” was Trump’s contract with this key demographic that he would staff the judiciary with solid, scholarly conservatives they believed would give their claims a fair hearing.
It worked. By a relatively small number of votes in crucial states, Trump won an upset that almost certainly would not have occurred absent support from religious conservatives. Conversely, Trump, working with a team of elite evaluators, has delivered for conservatives on judges, including his two Supreme Court nods. His record on this score is often the first thing Trump supporters cite in explaining their position. It is probably no accident that Trump’s core support comes not from working-class whites, but white evangelicals.
Moreover, the confirmation of Justice Neil Gorsuch helped cement a number of victories for conservatives at the Supreme Court. At the end of the most recent term, the court delivered three such decisions.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled that a state agency unconstitutionally showed bias against a baker’s religion. In National Institute of Family and Life Advocates v. Becerra, the court held a law requiring crisis pregnancy centers to disseminate information on obtaining abortions likely violated the First Amendment. And in Janus v. American Federation of State, County and Municipal Employees, the court overturned a precedent to strike down a law compelling public employees to subsidize a union, a decision that coincidentally will greatly undermine the Democrats’ funding and infrastructure.
Justice Anthony Kennedy, who is solid on free speech but decidedly less so on issues like abortion and affirmative action, then announced his retirement. The perception across the political spectrum is that Kavanaugh likely will be a more reliably originalist successor.
In short, Republicans are on the verge of moving the Supreme Court rightward in a way seemingly unthinkable since President Reagan’s nomination of Robert Bork. In an era where Supreme Court votes were generally more bipartisan, the Bork nomination failed largely due to an unprecedented smear campaign mounted by progressive activists who understood the stakes. Given the current stakes, it is not surprising that progressive activists now lacking the votes are acting out.
Had a few tens of thousands of voters in the Rust Belt stayed home, or Hillary Clinton been a marginally more competent or honest candidate, we might now be watching the confirmation hearings for her second Supreme Court nominee. How would the right react to that situation? In particular, how would the Trumpier, “He FIGHTS!” faction of the GOP react? What would be said of McConnell if he reverted to a business-as-usual approach to Clinton’s judicial nominations?
At the hearings for Clinton’s second justice, if an Operation Rescue-style group of pro-life activists showed up to wave posters of fetal sonograms, how would the right respond? Would they condemn such a group, or would they suggest such stunts were unhelpful, while expressing sympathy to their general position given the moral gravity of the issue at stake? The answers to these questions seem fairly obvious.
In theory, the composition of the Supreme Court should not matter that much. Thanks mostly to the Warren and Burger Supreme Courts, it matters a great deal. Are the Senate Democrats and leftist activists being overly dramatic? Of course.
But it may be unfair to suggest they are intentionally trivializing judicial nominations. At a time in which our politics and our media run through several cycles of outrages, faux rages, and hoaxes daily, the left has at least chosen to dramatize something important.