On Kavanaugh, Democrats Lack A Coherent Message And A Coherent Strategy
At least in these early days, Democrats appear to lack a coherent message, or a coherent strategy, to propel any effort to block Brett Kavanaugh's nomination to the Supreme Court.
The Associated Press’s Lisa Lerer and Steven Peoples note that, at least in the initial days after his nomination was announced, Democrats don’t seem to have a coherent message against President Trump’s nomination of Judge Brett Kavanaugh to succeed Supreme Court Justice Anthony Kennedy:
WASHINGTON (AP) — Chuck Schumer, the Senate Democratic leader, says it’s all about health care. Sen. Richard Blumenthal, D-Conn., worries about the impact on the special counsel investigation. And Sen. Kamala Harris, D-Calif., sees an assault that could set women’s rights back decades.
There’s so much for Democrats to dislike about Brett Kavanaugh, President Donald Trump’s Supreme Court pick. And that may be the problem.
In the hours after the Republican president tapped the conservative jurist, Democrats struggled to unify behind a clear and coherent message to combat the nomination, which could shift the court to the right for decades.
They’re energized, outraged and ready to fight. But what, exactly, is their argument to voters?
MoveOn’s Washington director Ben Wikler, who was among hundreds of liberal activists protesting outside the Supreme Court, acknowledged Democrats were far from unified behind a simple message to rally voters against Trump’s selection.
“The essential message is Roe,” Wikler said, citing the potential that a more conservative court would overturn the landmark Roe v. Wade decision that legalized abortion nationwide.
“The secondary message for most folks is ACA and health care,” Wikler continued, referring to the Obama-era health care law. “The third messaging plank is, ‘choose your own adventure.'”
It’s an all-too-familiar political challenge for Democrats, who’ve left voters confused in the Trump era about what the party stands for beyond simply opposing the president. And in this case, the muddled messaging threatens to dampen a new surge of voter enthusiasm just a few months before midterm elections.
For decades, Supreme Court battles have motivated the GOP’s socially conservative base far more than Democrats. But in an era where liberal protests have become nearly weekly events, Democratic strategists and activists say they see a new sense of urgency when it comes to the country’s highest court. In part, that’s because Kavanaugh’s confirmation would give the court a decisive conservative majority for a generation.
“Our phone is ringing off the hook,” said Nan Aron, who founded the liberal Alliance for Justice Action Campaign in 1979. “There’s much greater engagement because the stakes are so much higher.”
Democrats hope to model their opposition on their successful effort fending off a repeal of the Affordable Care Act last year, despite a Republican majority in Congress. But that fight featured a simple, clear argument — save the ACA — and the clear risk that millions of Americans could lose their health care.
(…)
Women’s rights groups raised the alarm across several key states that access to abortion was at stake. NARAL Pro-Choice America launched a new advertising campaign warning that Kavanagh is “ready to end Roe v. Wade.” The organization, which supports abortion rights, is also planning a national day of protests for the end of next month.
But Kavanaugh’s record complicates the Democrats’ initial desire to focus solely on abortion rights. While Trump repeatedly promised during the campaign to select a nominee who would overturn Roe v. Wade, Kavanaugh has sometimes taken a more cautious approach.
In his 2006 Senate confirmation hearing to become a federal judge, Kavanaugh appeared to support the legal precedent set by the Roe decisions. “I would follow Roe v. Wade faithfully and fully” because it’s “binding precedent” that has been “reaffirmed many times.”
The abortion issue is of particular importance this year, when women have emerged as the driving force in the Democratic Party. Women lead most of the major Democratic resistance groups, coordinated the major anti-Trump protests and are running for office in record numbers at all levels of government.
While it’s early in the process, and likely that there may be a more coherent message regarding Kavanaugh’s message that Democrats can unite around as we get closer to the Judiciary Committee hearings and the floor debate likely to occur in early September, this early disagreement about how to approach the nomination could pose a problem for Democrats going forward. Generally speaking, public opinion over the course of previous Supreme Court appointments has tended to give the nominee the benefit of the doubt and to support their confirmation unless something emerges that proves to be too controversial for the public to handle. This is what happened, of course, in the case of Robert Bork back in 1986 and what nearly happened with Clarence Thomas in 1991.
In Judge Kavanaugh’s case, it does not appear at first glance that there’s much of anything that would make him more or less controversial than any of the other nominees that President Trump could have named. In some respects in fact, such as the examples of Judge William Pryor or Judge Amy Barrett, Kavanaugh’s record on the bench reveals him to be less conservative, and less controversial, than other people that Trump could have selected to replace a Justice who, for much of his three decades on the bench, has been at the center of the Supreme Court’s delicate left-right balance. Assuming that there’s nothing in his record that we don’t know about yet that proves otherwise, this could make it difficult for Democrats to put together a message against his confirmation that actually has a chance of resonating outside of their base, which of course was going to oppose a Trump nomination regardless of who he might have named. Unless something like that emerges, or unless Kavanaugh says something in the course of his confirmation hearings that derail the process, which seems unlikely, the odds of Democrats being able to rally around a message that will accomplish anything other than rallying their own base will be pretty low.
Over and above the fact that they can’t agree on a message, of course, is the fact that there really isn’t a viable strategy for Democrats to stop Kavanaugh from being confirmed. The elimination of the filibuster for Supreme Court nominees, which of course merely followed in the footsteps of Harry Reid’s decision to end the filibuster for Judges below the Supreme Court and Executive Branch employees, means that Republicans will be able to sail the nomination through and get Kavanaugh confirmed even without any Democratic support as long as they stay united.
In that regard, the Democrats only hope lies in the possibility of Republican Senators defecting and voting against Kavanaugh’s nomination. The two names that keep coming up in that regard, of course, are Maine Senator Susan Collins and Alaska Senator Lisa Murkowski, both of whom have said that they might be inclined to vote against a nominee who was hostile to the Supreme Court’s decision in Roe v. Wade guaranteeing women a right to abortion. At least initially, though, it appears that both Senators are unlikely to stray from the GOP Caucus unless something comes up in the confirmation process that doesn’t provide them with the kind of political cover they’d need to support the nomination. In their initial comments regarding the Kavanaugh nomination, for example, Collins and Murkowski sent signals yesterday indicating that they are at least initially comfortable with Judge Kavanaugh, this suggests that it is unlikely that either or both Senators will go against the grain. Another possible roadblock with regard to Kavanaugh is Kentucky Senator Rand Paul, who told reporters prior to Trump’s announcement Monday night that he had concerns about Kavanaugh, especially with regard to his past rulings on the Affordable Care Act. In his first comments after Kavanaugh was named, though, Paul said that he would keep an open mind about the Judge, and it seems unlikely that he would want to be the Senator who ended up killing the President’s Supreme Court’s nomination given that he’s up for re-election in just four years.
The Democrat’s final issue, of course, is the question of whether they can even keep their own caucus united in opposition to Kavanaugh when the time for a floor vote comes in mid-to-early September. When the Senate voted on Neil Gorsuch’s nomination in April of last year, for example, three Democratic Senators — Joe Manchin, Heidi Heitkamp, and Joe Donnelly — all voted with the Republican majority. All three of these nominees, of course, represent states that President Trump won handily in 2016 and all three are up for re-election in November. Given that, the likelihood that they could decide that it’s in their interest to vote “Yes” again this time around. This is especially true given the fact that the floor vote will most likely be taking place just 6-8 weeks before the midterms and at a time when early voting will be starting in the states where it’s available. In addition to these three, other Democrats who are invulnerable seats this year, such as Claire McCaskill in Missouri, Bill Nelson in Florida, and Jon Tester in Montana, could be candidates for crossing the aisle on a final vote. A final candidate in this regard, of course, is Doug Jones in Alabama. He doesn’t face re-election until 2020, of course, but he’s already voted in ways that show he realizes that he is going to have to differentiate himself from the national Democratic Party if he’s going to have any chance at all of winning in a state where President Trump is likely to win overwhelmingly as he did in 2016. Every Senator that the Democrats lose in the final vote just makes any prospect of stopping Kavanaugh’s nomination seem more and more impossible.
Taking all of this into account, for the moment at least it looks if the Administration will get the Kavanaugh nomination finalized in time for Judge Kavanaugh to take the bench when the Supreme Court’s new term begins in October.
The victory laps are getting to be a tad obnoxious. He’s going to be confirmed. You know it. We know it. There’s little left to be explored on this turf beyond gloating.
Just saying
Dude, they lack the votes. Nothing else matters.
Steve
@HarvardLaw92:
I made the same points on Twitter and was set upon by progressives who apparently cannot count.
Collins and Murkowski will stroke their chins and hem and haw and then roll over. Rand Paul will find a way to say, “Look at meeee!” and then roll over. That’s ball game.
The only thing we can accomplish now is to force some red state Dems to stay with the party and thus injure our chances of taking the Senate. Which is a bit of a problem since the thinking on the Left seems to be to stall until we take back the senate.
We should absolutely make some noise, focus on issues, and remind voters that this is what you get when you stay home or throw a vote away on a protest candidate. But we cannot make this a party loyalty test without damaging our dwindling shot at taking the Senate.
Why would Democrats need a message or a strategy since there is nothing they can do to stop his nomination?
Oh please…in the first place, Republicans were abusing the filibuster, and in the second place, if Reid hadn’t done that McConnell surely would have as soon as he had the opportunity…
@Michael Reynolds: Do you really think voting against Kavanaugh will excite the republican base more than voting to confirm would depress the democratic base? I have trouble seeing that.
@An Interested Party:
In other words, “it’s okay when my side does it, but not when the other side does it.”
@An Interested Party:
Why indeed?
Let’s focus on what matters. The Cheeto is wrecking the international order and making the world less safe in the process.
Sticking to the Supreme Court, Ginsburg is 85, Breyer 79 and Thomas 70. any of them could retire before 2024, or die before then. Should the Cheeto gain reelection, it’s very likely he’ll get one more appointment, likely he’ll get two more, and possible he may get three more.
So that’s imperative is for the Democrats to gain as much political power as possible, starting with this year’s midterms.
They seem to have a good chance of flipping the House, but little of doing the same in the Senate. Focus on that for now. A Democratic House will be able to undertake a serious investigation of Trump, and serve as a check in general.
After that, the focus should be on 1) defeating Trump in 2020, and 2) regaining the Senate.
It would be great if Kavanaugh’s confirmation could be stalled and then the Democrats flipped the Senate. Of course it would be. It would also be great if one could lose weight by eating lots of bacon and cheesecake. Unfortunately, to paraphrase H.G. Wells, reality takes no heed of human hopes.
Oh Shit. Trump was supposed to pick Barrett, because she was anointed by god, and now that he chose Kavanaugh, Kavanaugh must step aside or Be Destroyed!!!!!
http://www.rightwingwatch.org/post/jags-phillip-jauregui-barrett-is-gods-anointed-kavanaugh-a-usurper-out-to-steal-gods-scotus-seat/
Sucks to be Kavanaugh.
@Michael Reynolds:
Paul reminds me of Megamind. Early in the movie, explaining his struggles with the city’s superhero Metroman, he says “He won some. I almost won others.”
Paul is always almost opposing Trump.
@teve tory:
Pretty sloppy of a god to reveal their choice to this guy rather than to the Cheeto in charge of making the nomination, isn’t it?
All this pearl clutching and concern trolling is really getting tiresome.
Yes, the Democrats don’t have the votes to stop the court from turning into a rubber stamp for the right wing.
At the same time it’s crucial that they put up a good fight to remind their base that something crucial is at stake — and if they want to stop it next time, they’d better get out and vote in November.
If they don’t fight — or if they just tell their members to go off and vote to make this nation a theocracy or a corporate dystopia — then they tell their base there’s no point in voting in the fall, since both sides are the same.
That’s the stakes, that’s the battle ground. Pearce can pleasure himself by writing about how impotent the Dems are, Michael and James can give us stern lectures on how Kavanaugh is a Deep Thinker and thus we should all be happy to have our rights stripped away by him, and the Trump morons can continue to squeal in pleasure, but nothing is going to change all of this.
The Democrats will lose this fight, but if they decline to engage in the losing fight they risk losing the war.
First, there is his belief that a President cannot be indicted and should not be investigated. Add to that the reports that he was chosen ahead of time, in a back room deal with departing Justice Kennedy, and a case can be made for cronyism. The parts don’t all fit together, yet, but there’s a decent chance that his good name could be so tarnished by the end, that a few Republican Senators peel off.
Second, it appears that he may have perjured himself in his last confirmation hearing, and then ignored all requests for clarification. This might explode in his face.
Defeating Kavanaugh would just mean that another nominee would be crammed through — in a lame duck congress, if need be.
After the unprecedented filibuster of everything during the Obama years, and the Merrick Garland incident, is there really any doubt that McConnell would have done whatever he could to get any Republican on the court?
The new norm for the Senate is “screw the norms, if we have the power to do something, do it.”
@Gustopher:
“First, there is his belief that a Republican President cannot be indicted and should not be investigated.”
FTFY. Kavanaugh was at the forefront of pushing for Clinton to be investigated and indicted during his years on Ken Starr’s staff. So there’s also the question of whether he believes in differing legal standards depending upon a person’s party.
I don’t think you can get much more coherent than the Democrats’ present message: they don’t want to confirm anybody that Trump appoints to the Supreme Court. They don’t much care about Brett Kavanaugh. They resent that Trump has the power to appoint him. How do you get more coherent than that?
What they lack is a way of accomplishing that, coherent, incoherent, or otherwise.
@Kathy: @Kathy: Your name-calling is soooo infantile. If you mean to call Trump the Cheeto then what names are good for, say, Bernie Sanders? Dildo? Hillary? Irma la Douche? I repeat…infantile.
@John430:
“Your name-calling is soooo infantile. If you mean to call Trump the Cheeto then what names are good for, say, Bernie Sanders? Dildo? Hillary? Irma la Douche? I repeat…infantile.”
I am sure you will be first in line to parrot them once Trump coins them.
@Moosebreath: I’m sure John 420 finds the person who said the following things infantile:
“Jeff Flakey”
“Dicky Durbin”
“Little Adam Schiff”
“Liddle Bob Corker”
“Cheatin’ Obama”
“Cryin’ Chuck Schumer”
“Al Frankenstien”
“1 for 38 Kasich”
“Sneaky Dianne”
“Crooked Hillary”
“Sloppy Steve”
“Little Marco”
“Pocahontas”
“Low Energy” Jeb
“Lyin’ Ted”
“Little Rocket Man”
because the rest of the world certainly does.
@John430:
Oh, you mean, like:
“Low energy Jeb”
“Little Marco”
“Lyin’ Ted”
“Little Rocket Man”
“Crooked Hillary”
“Low IQ Maxine”
“A sleeping son of a bitch”
“Cryin’ Chuck Schumer”
“Cheatin’ Obama”
“Sneaky Diane”
“Liddle Bob Corker”
“Pocahontas”
Like those Trump coined and used repeatedly?
@CSK: HA I BEAT YOU, LOW-ENERGY CSK! SAD!
@Moosebreath: I think this is the best argument for the democrats: Kavanaugh would inject politics into his judicial opinions. (I know, I know, we’re all shocked, just shocked!) But that goes to the fundamental idea of fairness. We need to at least look like we care about people getting a fair shake in front of a judge, and not have to worry about whether the judge likes/dislikes democrats or republicans.
I also think that is a lot harder to argue about how it all comes down to abortion (which riles up their base too) if the democrats are arguing that he would treat people unfairly.
@teve tory:
You did indeed beat me. I concede. You are the champ. But…I did get “sleeping son of a bitch.”
@teve tory:
And that long unquoted list is my reason. But perhaps we could call Benito the Cheeto by some more respectful epithet like:
Dictator in Chief
Vladimir Trump
Big Brother
Der Fuhrer
Comrade Dennison
You get the idea. One must be careful what to call someone who rips children from the arms of their parents. One wouldn’t want to be uncivil.
John430 must not have been sitting up at attention when his
Supreme Leader Kim Jong Trump hurled all those insults.
@Kathy: John 420 is just experiencing what everyone who aligns themselves with trump eventually does: humiliation.
The Dems are having a messaging problem because on paper Kavanaugh is qualified. In less partisan times he would be confirmed easily, heck, Clarence Thomas was confirmed.
Well of course a libertarian would play the game of “Both Sides Do It” because only libertarians are pure of heart…
And what would you suggest they do? Perhaps they should all leave Washington and refuse to come back until Republicans are more agreeable…
Apparently, Kavanaugh’s large debts are because of the high price of baseball tickets. How quaintly American.
As American as credit card debts and baseball.
I assume something horrible will turn up here, because this administration lies about everything.
IDK about that. What’s wrong with “OMG he’s LITERALLY a Russian Nazi who is going to personally KILL WOMEN in alleys!!”?
@Sleeping Dog:
And he’s BLACK!
@Sleeping Dog:
Thomas was only confirmed because polls at the time showed that most Blacks supported his nomination(In part because most of them did not have contact with his views), then lots of Southern Democrats voted for him.
If the Democrats controlled the Senate they could say, thanks but no thanks to any Trump nominee.
@An Interested Party: And what would you suggest they do?
This was the first thing I thought of as well. What can democrats do? And blaming this on Harry Reid is just not cutting it. Libertarians have no experience at governing. (There is a very good reason for that.) They are very experienced at bothsiderism. They have little to offer but criticism, mostly of democrats.
For example, the often repeated people vote on ‘pocketbook issues’. If that were the case, Clinton should have won overwhelmingly because the Obama administration pulled our country (despite the republicans) out of one of the worst recessions in memory. But no, people don’t vote their pocketbooks. They vote their tribe and hate. That’s how we get to Trump. Immigrants killing people and taking the jobs of “good” people. Blacks not knowing their place. Puerto Ricans not being citizens. And this government saying they are being generous by taking children away from their families.
As a side note, I don’t think calling Trump names makes anything better. It’s childish. While it might make you feel better, saying those sort of things on one little blog in this universe of comments is pretty ineffectual. But hey, carry on!
@Kathy: Careful–“Dick-Tater in Chief” gets Trumpite men tingly around the nipples.
@michilines: I suggest they start by getting rid of the top three levels of party leadership and modernize the party’s brand and vision. In no other “industry” could leaders fail so spectacularly at seeming their height of power–and still have jobs. Where is the accountability for bad bets in the Party? Thats right–there is none. Its an organization build around seniority which makes it ripe for stagnation and dis-innovation.
The party is pushing a 20 year-old menu–can you tell me any business marketing itself the same as it did 20 years ago–that’s still in business? They got lucky with Obama–otherwise they are loosing worse than what the score would suggest.
@Jim Brown 32:” In no other “industry” could leaders fail so spectacularly at seeming their height of power–and still have jobs.”
You are kidding me, right? What you stated is the absolute opposite of reality. Industry is replete with people failing up.
Secondly, government is not business. It never has been and shouldn’t be. More than half of businesses anywhere fail. If government — in any country — ran like a business, it would likely fail. That’s not good for anyone — including business.
Political parties should have a core belief system. I believe the democratic party does and it is one I agree with — no matter who is the head. The republican party also has a belief system. It currently includes racism and party over country. If you are happy with that, fine then.
@Moosebreath:
Kavanaugh’s article was published in 2009, just as Barack Obama’s presidency was beginning, and based on a speech he gave back at the tail end of the Bush presidency. It’s simply unfair to claim he was making a partisan argument.
Beyond that, it’s rather clear from just the few few paragraphs of the piece that he’s not making a judicial argument but rather a political one. That is, he’s saying that the bitter fights in the Clinton and Bush presidencies point to some problems with our system that, “My goal in this forum . . . more modest: to identify problems worthy of additional attention, sketch out some possible solutions, and call for further discussion.” He’s not arguing that his solutions are what he would rule from the bench. Indeed, since he was a Court of Appeals judge when he wrote the piece, doing so would have been a huge violation of legal ethics.
@James Joyner:
To be fair, something of that nature hasn’t stopped this Administration from picking a candidate. They violate legal ethics, ethics and the law like they breathe. It wouldn’t even be a blip on their radar.
But the pursuant question is “does that political argument influence the judicial one”? We like to pretend judges are apolitical creatures who practice justice as their religion and fair balance as their inherent creed. They’re people and whatever baggage or preconceived notions they have coming in are definitely going to have an impact. His background plus the nature of the article raises concerns, justified or not and they should be addressed. It’s a fair question to ask considering his background and the situation we find ourselves in.
Let’s face it, had it been anyone else but Trump, the question of how Kavanaugh feels about presidential prosecution would likely never have come up. Even with Hillary since they’d have gone with impeachment since they’ve been trying and failing to find criminal charges for a decade now. He had the unfortunate luck to be nominated by a guy who’s definitely done dirty deeds in his life and wasn’t particularity cautious enough to hide the evidence, meaning he very well might have to rule on this. Fair or not, this is going to be an issue he can’t duck and must explain his rationale.
According to right wing nut job Jesse Lee Peterson, Kavanaugh is not a real man because he has daughters, and Real Men produce sons.
…And people wonder why scientists now vote 90% Democratic Party
.
http://www.rightwingwatch.org/post/jesse-lee-peterson-brett-kavanaugh-is-a-mamas-boy-and-not-a-real-man/
@KM:
“But the pursuant question is “does that political argument influence the judicial one”? We like to pretend judges are apolitical creatures who practice justice as their religion and fair balance as their inherent creed. They’re people and whatever baggage or preconceived notions they have coming in are definitely going to have an impact. His background plus the nature of the article raises concerns, justified or not and they should be addressed. It’s a fair question to ask considering his background and the situation we find ourselves in.”
Exactly right.