The Trump Court and the Tactics of Resistance

Trump’s Helsinki debacle has already eclipsed public attention to his nomination of Brett Kavanaugh (let us pause to reflect upon the soundbite perfection of that name) to the Supreme Court, a watershed moment that electrified liberals in a way that Trump’s appointment of Neil Gorsuch only mildly foreshadowed. But we would do well not to forget what Kavanaugh’s appointment will mean, and what it suggests about the tactics of resistance to the Trump presidency.

The liberal paroxysm that greeted Kavanaugh’s nomination was in part a reaction to the hypocrisy of Senate Republicans, who refused even to consider Barack Obama’s Supreme Court nominee in a presidential election year but now rush to confirm Trump’s before Congressional elections that could eliminate the Republican majority in the Senate. Senate Judiciary Committee Chairman Chuck Grassley today announced a plan to ram through Kavanaugh’s confirmation in the next 70 days.

But blatant hypocrisy is nothing new to Congress. The real horror for liberals is their belated realization that Trump is on the cusp of an achievement toward which the think tank right has been methodically working for years — a conservative takeover of the highest court in the land, one that will endure long after Trump is gone.

Senate Democrats’ tactical response to this threat is simple, short-sighted, and in all likelihood doomed: vote as a bloc against Kavanaugh’s confirmation, and hope that at least a couple of moderate Republicans can be peeled off to join their opposition. The problem with this is that, while he is unquestionably right of center ideologically, Kavanaugh has a stellar educational resumé, a long and essentially unblemished record as a judge, and an instinct toward consensus, and is ideologically less extreme than, say, Robert Bork or Clarence Thomas, one of whom sits on the Court already. Railing against him for his work for Ken Starr or his hypothetical and ultimately unknowable position on this or that hot button social issue –even Roe— may appease some Democrats’ constituencies, but likely won’t earn the needed votes against him.

And if the unlikely occurs and Kavanaugh’s nomination is voted down, what then? Trump will merely consult the list of conservative judicial ideologues provided to him by the right-wing Federalist Society, and pick another name. And the Kabuki theater of Supreme Court confirmation hearings would begin anew.

If the mid-term elections deliver a Senate majority to the Democrats, this blockage of Trump nominees could go on and on, leaving the Court a hand short, but still functioning (as it was in the long gap between Scalia’s death and Gorsuch’s investiture) and still weighted toward its conservative wing. What will Democrats have accomplished, other than to have further deepened the partisan divide and galvanized the passions of Trump’s supporters?

The hard fact is that this battle was lost on the day Trump won the presidency. In the now supremely ironic words of our last President, elections have consequences. The white middle-class women who voted for Trump were probably not thinking about impairing their reproductive rights or their health insurance at the time they cast their votes, and the die-hard followers of Bernie Sanders were probably not thinking of expanding corporate political influence or conferring Presidential immunity from prosecution when they withheld their support from Clinton, but those issues and countless others of equal weight hung in the balance on election day. The Sanders-Johnson-Stein contingent and the disaffected Democrats who didn’t vote at all might better have followed the example of the evangelicals who held their noses and voted for a deeply flawed candidate who would nonetheless implement their policy agenda. The lasting consequences of those choices are now being reaped.

The conservative transformation of the Court is already done, and can’t be fully undone for decades, but the other two branches of government are still within the electorate’s control. The noise of the leftist “resistance” –waving placards, obsession with Trump’s latest lies or buffoonery, the fantasy of impeachment—all this distracts moderates and liberals alike from the hard work and simple duty of winning elections, starting this fall.

We are now a little more than two years away from our first opportunity to vote Trump out of office. Who will be the Democratic nominee? Corey Booker? Old Joe Biden? Elizabeth Warren (God forbid)? Oprah? We should have some idea of this by now if Trump is to be defeated, yet the main Democratic strategy for 2020 seems to be to assume that there will be a popular backlash against the incumbent no matter who they put up. Which sounds very much like the kind of presumption that lost the election in 2016.

Maybe, my fellow liberals, the arc of history doesn’t bend toward justice, but toward the causes of those who plan. Maybe those who voted for Trump are not horrified that he is delivering on much of what he claimed to stand for, but might nonetheless be persuaded of a better path if persuasion rather than insult and knowing sarcasm were the vernacular of the left.

The Trump Court that our children’s children will be living with is not the result of some aberration in the natural order; it’s the result of years of planning and work on the part of conservatives to seed the appellate judiciary with like-minded jurists and to gerrymander their way to a majority in Congress.  All it took was a hundred thousand votes in the upper Midwest and our antique Electoral College to bring that work to its disheartening fruition.

Democrats need to begin to show the same kind of single-minded purpose, not in defensive resistance and howls of protest at the inevitable, but in an affirmative strategy to revive the belief of the people in the liberal causes they hold dear.

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