The Corner

Law & the Courts

How Today’s Hearing Is about the Lessons from 2016

President Trump shakes hands with Supreme Court nominee Brett Kavanaugh at the White House, July 9, 2018. (Leah Millis/Reuters)

Two thoughts I didn’t get to fit in today’s Morning Jolt:

First, a co-worker from long ago wrote in, pointing out that the Kavanaugh fight is, in a big way, about President Trump and what lessons everyone should take from the 2016 election.

Why did Trump win in 2016? You’ll hear lots of theories, but most observers would agree that Trump seriously reassured a lot of otherwise skeptical conservatives and Republicans when he announced his list of potential Supreme Court justices. For pro-lifers, it meant that the once pro-choice Trump would, if elected, get you closer to overturning Roe v. Wade. For gun owners, it meant that the once pro-gun-control Trump would appoint justices who would uphold the Second Amendment. For everyone who prioritized an originalist or strict-constructionist philosophy when it comes to the judiciary, it meant Trump wouldn’t appoint Judge Judy or his sister, a liberal-leaning federal judge. Trump’s list bolstered everyone who hated “activist judges” who are “legislating from the bench.” In autumn of 2016, I heard a lot of Trump-skeptic conservatives make comments along the lines, “I can’t stand Trump, but I can’t let Hillary Clinton appoint the replacement to Antonin Scalia.”

Think about what this means: You can have all of the scandals, gaffes, character flaws, and other problems of Donald Trump, and still win the presidency, as long as you promise to appoint good judges. (It probably helps to have an opponent as deeply flawed as Hillary Clinton.) This is the most compelling evidence imaginable that “I will appoint judges who will protect your freedoms” is the most important and winning position to hold in American politics.

Needless to say, this prospect terrifies the Democrats. They have to do anything and everything possible to dispel the perception that supporting originalist judges is a position that wins a lot of votes and could be decisive in a hard-fought race.

If Trump gets both Neil Gorsuch and Kavanaugh on the court, he will have delivered for his base twice, and everyone can see that Ruth Bader Ginsburg and Stephen Breyer both getting up there in years. No matter what else happens between now and the elections of 2018 and 2020, the conservative grassroots would see Trump as a man who delivered upon his promises and who deserves reelection.

Second, in today’s hearing, the goal of the Democratic party as a whole and the goal of the senators with 2020 aspirations may be at odds. For the Democrats, the best outcome is a calm, cool, methodical demonstration that Christine Blasey Ford is credible witness with a clear memory of events and her account aligns with all available evidence from back then, and a similar methodical demonstration that Kavanaugh’s denial is not credible. For Cory Booker, Kamala Harris, and any other Democrat with presidential aspirations, the best outcome is that he or she stands out from the rest of the panel with a memorable fire-and-brimstone denunciation of Kavanaugh, Trump, Republicans as a whole, and perhaps other concepts such as “rape culture,” “the Patriarchy,” and other more abstract targets. Dramatic fireworks are good for fundraising, but could well convince the broader public (and any wavering Republican senators) that the whole process had become a partisan circus.


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