The Morning Jolt

Law & the Courts

Don’t Burn Your Political Bridges

Supreme Court Associate Justice Brett Kavanaugh speaks at a ceremonial swearing-in at the White House, October 8, 2018. (Jim Bourg/Reuters)

On the menu today: The surprising but compelling argument that Brett Kavanaugh now represents the swing vote on the U.S. Supreme Court offers Democrats a hard, tough lesson on how their scorched-earth tactics tend to backfire; looking back at the Sotomayor hearing and how to oppose a nominee without smearing reputations; more questions about Biden’s light schedule; and an invitation you won’t want to miss.

Will Democrats Learn Anything from the Kavanaugh Confirmation Fight?

Greg Stohr of Bloomberg Law makes an observation that should stir deep regrets and recriminations across the American left:

U.S. Supreme Court Justice Brett Kavanaugh remains anathema to many liberals. The death of Justice Ruth Bader Ginsburg means he also may soon be their best hope to save abortion rights and Obamacare.

Kavanaugh, who prefers narrower rulings than some of his conservative colleagues, would find himself at the court’s ideological center if President Donald Trump succeeds in replacing Ginsburg with a staunch conservative. From there he could decide how far, and how quickly, it turns to the right on some of the country’s most divisive issues.

“Kavanaugh would by default become the most logical person to play the pivot role,” said Carter Phillips, a lawyer at Sidley Austin who has argued 79 Supreme Court cases.

That would mean to some degree supplanting Chief Justice John Roberts, who has held the balance of power for the past two years, largely backing conservative results but joining with the liberal wing to strike down an abortion regulation and preserve the DACA deferred-deportation program . . .

In his two terms on the court, Kavanaugh has established himself as a consistent conservative. He has backed religious freedoms, voted against LGBT workers and sided with Trump on presidential powers and immigration issues. Kavanaugh has also supported property rights and the death penalty and voted to shield partisan gerrymanders from constitutional challenges.

And this, dear readers, is why when you’re facing a nominee you don’t like in a Supreme Court confirmation hearing, you don’t smear the man as a drunken maniacal habitual rapist running parties that featured mass sex-abuse rings in Georgetown. Because the man you’re demonizing and furiously denouncing today could be the man you’re trying to win over or appeal to tomorrow. Once you’ve gone scorched earth on a man and done everything possible to paint him as a brutal monster in front of the whole wide world, it’s much, much tougher to ask him to see an issue from your point of view. At that point, you haven’t just burned your bridges, you’ve blown it up like the old Tappan Zee Bridge.

Getting things done in government — also called succeeding in politics — requires alliances. It requires working with people who don’t agree with you on everything, reaching deals with people you don’t like, and remembering that the person you’re furious with now might be the person who can help you out down the road. If you’re going to make an enemy, make that choice wisely and recognize the consequences you’ll face afterwards. The phrase “scorched earth” alludes to destroying farmland and equipment that is needed to grow crops; the point is that once you’ve scorched the earth, nothing can grow there for a long time.

Yesterday, Seung Min Kim of the Washington Post, one of the top-tier reporters on the White House beat, observed, “Relationships in Trump’s Washington are interesting: Trump called Sasse a ‘RINO’ who looks like a ‘gym rat,’ Sasse called Trump actions ‘unconstitutional slop,’ but apparently the two have talked eight times about nominating Amy Coney Barrett to SCOTUS.”

Well, yeah. No matter what Sasse thinks of the president, Donald Trump is still the man who makes the choice for nominating someone to the Supreme Court. And no matter what Trump thinks of Sasse, the Nebraska senator is one of the 50 votes he needs for confirmation and probably a useful voice to listen to when it comes to getting a sense of which nominee would withstand a confirmation battle best and be the most effective on the court. For a nomination to succeed, these two men need each other.

You can, by the way, make an ardent case against a nominee without trying to destroy the nominee’s reputation. Look back to the Sonia Sotomayor hearings, way back in 2009:

On Wednesday afternoon, Sen. John Cornyn (R., Texas) noted that the question before the panel was whether they were voting to confirm Sonia Sotomayor the Judge — whose record he called within the mainstream — or Sotomayor the Speech-giver. In one of his last opportunities to question Sotomayor, on Thursday, he put it to her directly: “What should I tell my constituents who are watching these hearings and saying to themselves, ‘In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you’ve said in speeches around the country’?”

Sotomayor said that Cornyn’s constituents should “look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in.” But that answer simply ignored the contradictions. Before posing the question, Cornyn had laid out several examples in which Sotomayor’s current position was the opposite of her past remarks — on whether she agreed with Justice Sandra Day O’Connor’s view that a wise man and a wise woman would reach the same decision, on whether ‘capital L Law’ was a public myth, on whether innate physiological differences of judges would or could affect their decisions, on whether she rejected the approach of Justices Samuel Alito and Clarence Thomas with regard to foreign law.

Michael Kinsley’s most quoted observation is that “a gaffe is when a politician tells the truth,” and the tone of one of Sotomayor’s controversial comments suggests that she was indeed acknowledging a truth that she and the rest of the legal community are supposed to avert their eyes from. “All of the legal defense funds out there, they are looking for people with court of appeals experience, because the court of appeals is where policy is made,” she said in a 2005 appearance at Duke University Law School. She laughs a bit through the following sentence. “And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.”

Republicans even got Sotomayor to argue that President Obama’s characterization of what qualities are important in a judge were in fact contrary to the U.S. legal system’s:

[Arizona Senator Jon] KYL: [President Obama] talked once about the 25 miles — the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what’s in the judge’s heart?

SOTOMAYOR: No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart.

When you can get a nominee to concur that the evaluation criteria of the president who nominated her is deeply flawed, you’re having a pretty good confirmation hearing

Republicans knew that because the Senate had 59 Democrats or Democrat-aligned independents, their chances of blocking Sotomayor’s nomination were nil. Sometimes you just don’t have the votes. So you focus on what’s achievable: making the best, most effective, and most well-supported argument you can and make it as easy as possible for Republicans to justify a “no” vote, and make it as tough as possible for Democrats to justify a “yes” vote. When John Roberts was nominated, 22 Democrats voted “no.” Republicans wanted to exceed that total — and they did; 31 senators, all Republicans, voted against Sotomayor’s confirmation.

No one falsely accused Sotomayor of committing lurid and violent crimes. There was no Republican equivalent of Michael Avenatti, bringing out wild and unsubstantiated allegations on Twitter and cable-news interviews, elbowing his way into the news cycle.

This week, we’ve already seen an effort to paint Amy Coney Barrett as a brainwashed Handmaid’s Tale religious drone, with those attacks debunked here, here, here, here, and here. It appears few Democrats or left-leaning members of the media see the Kavanaugh confirmation fight as a loss, or as a major mistake. They seem to have convinced themselves they’ll win this fight if they just try harder.

(Stray thought: Because so much of this week’s speculation has focused around Amy Coney Barrett, is there any chance that Trump prefers to surprise everyone and select Barbara Lagoa?)

The Campaign That Wouldn’t Campaign

Michael Brendan Dougherty joins the chorus on Biden’s curiously light campaign schedule:

If Biden blows it, the basement-campaign strategy will look like an obvious culprit in his defeat. Usually, a party tries to avoid making the same mistakes that recent losing campaigns made. But Biden’s operation seems to be leaning into dangers that should be obvious. Hillary Clinton’s campaign was dogged by conspiracy theories about her health, ones that were dismissed by her cheerleading journalists until the very moment she seemed to collapse at a public event and was thrown into the side of a van by her handlers. This surely hurt Clinton. Furthermore, she was criticized in the aftermath of the campaign for not campaigning enough in Wisconsin and for not putting in the work. Compared to Biden, she looks like a workaholic. Biden only visited Wisconsin after the riots in Kenosha.

What if the campaign should be, uh, campaigning more? Why isn’t it?

This cannot have been the Democrats’ ideal plan as they approached 2020. Their nominee turns 78 after the election, is barely visiting the key swing states, doesn’t do many interviews, and tends to create a gaffe when he does. He acknowledges that expanding the size of the Supreme Court is a legitimate question and then announces he will not say what his position is. He announces he will release a list of potential Supreme Court nominees and then changes his mind. Kamala Harris isn’t interacting with the electorate much, either.

If Biden wins the presidency and continues on something akin to his current schedule — two public events every three days — that might not be the worst thing. America could use a president who does not dominate every news cycle and who is not touted by his fanbase as “the God of all things” or “God’s chosen one.” But with Biden, we have to wonder how much his light schedule is a deliberate strategy and how much it is a concession to age and health.

ADDENDUM: The show must go on! Please join us for an historic event: National Review Institute’s William F. Buckley Jr. Prize Dinner “Gala at Home” on October 5 honoring James L. Buckley and Virginia James. Guests will be invited to put on their tuxedos and ballgowns, grab a glass of champagne, and join us for a virtual experience. The program will include opportunities to connect with NR writers and dinner guests and tune in to a mix of live remarks and videos from our honorees and dinner co-chairs. Your ticket or sponsorship will be fully tax-deductible and go to support NRI’s educational and outreach programs that advance the NR mission during this critical time in our nation’s history. Don’t wait. RSVP today.

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