Dem Missteps Made Conservative SCOTUS Supermajority Possible

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October 17, 2020

The success of President Donald Trump's last two nominations to the Supreme Court hinges largely on a sequence of tactical errors made by Senate Democrats.

The ill-fated filibuster of Justice Neil Gorsuch left Democrats without procedural weapons to blunt the far more contentious nomination of Justice Brett Kavanaugh. After the Kavanaugh hearings devolved into an angry and lurid spectacle, Republicans netted two Senate seats that are now the margin of victory for Judge Amy Coney Barrett's confirmation, expected later this month. Barrett's confirmation, which fills out a 6-3 conservative supermajority on the High Court, likely would not have come about but for those miscalculations.

Sen. Amy Klobuchar (D., Minn.) acknowledged that Barrett's confirmation seemed inevitable even before her testimony to the Senate Judiciary Committee this week.

"We do not have some secret, clever procedural way to stop this sham. Let's be honest," Klobuchar said. "And as good as we are, there's probably not going to be some brilliant cross-examination that is going to change the trajectory of this nomination."

The prime mistake was made in 2017, when Democrats filibustered the Gorsuch nomination, even though his confirmation would not have changed the ideological balance of the Court. It was a doomed gambit, as it prompted Senate Republicans to turn the nuclear key and abolish the 60-vote procedural threshold for Supreme Court nominees. Legal observers spanning the ideological spectrum warned Democrats that strategic patience would pay dividends should another vacancy arise.

"Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives," UC Irvine professor Rick Hasen wrote at the time on his Election Law Blog. "Better to save the firepower for that fight."

Hasen was vindicated in short order. The Kavanaugh nomination was subsumed by allegations of past sexual misconduct that inflamed partisan passions. Had Democrats kept their powder dry, Republicans would have had the ugly task of breaking a filibuster in the midst of a frenzied national reckoning with gender dynamics, sexual impropriety, and due process.

Republicans might have managed a rule-change in that environment, but it would have been a supremely difficult effort. The GOP had just 51 seats at that time. One Republican, Sen. Lisa Murkowski (R., Alaska), voted against Kavanaugh's confirmation, making her an unlikely vote to abolish the filibuster in that setting. Whether other moderates such as Sen. Susan Collins (R., Maine) or former Sen. Jeff Flake (R., Ariz.) would have backed the nuclear option is an open question. Sen. Joe Manchin (D., W. Va.) was the only Democrat who voted to confirm Kavanaugh, but he would have been a near-certain vote against the rule change.

GOP veterans of the wild Kavanaugh rumpus credit Democratic tactics with the Senate victories that are making Barrett's confirmation possible.

"President Trump should give Chuck Schumer a Presidential Medal of Freedom. The Schumer-led utter buffoonery during the Kavanaugh confirmation forced four Senate Democrats into early retirement—and guaranteed that a Justice Amy Coney Barrett joins the new 6-3 Clarence Thomas Court," said Mike Davis, a former Republican Senate lawyer who now runs an advocacy group that supports Trump judicial nominees.

Some red-state Democrats, such as former Sen. Heidi Heitkamp (D., N.D.), were longshots for reelection to begin with; but others, such as former Sens. Bill Nelson (D., Fla.), Claire McCaskill (D., Mo.), and Joe Donnelly (D., Ind.), ran competitive campaigns through the fall. Nelson lost by about 10,000 votes out of some 8 million cast.

McCaskill and Donnelly have since attributed their defeats in significant part to the emotional currents the Kavanaugh confirmation unleashed.

McCaskill told NPR that Dr. Christine Blasey Ford's allegations should have been disclosed and investigated as soon as Sen. Dianne Feinstein's (D., Calif.) office obtained them. Their late appearance legitimated "the very real perception that this was an 11th-hour attempt to gut a guy," she said.

"I don't think my vote hurt me as much as the spectacle that occurred," McCaskill said. "There were mistakes made by my party in terms of how that was handled."

Republicans will reap the benefits of those mistakes later this month. Were two of the four Democrats who lost in 2018 still in the chamber, Republicans would have maintained only a narrow 51-49 advantage. As it is, Barrett's confirmation seems all but inevitable.