“Elections have consequences. I won.” That was President Barack Obama’s response to congressional Republicans in a 2009 White House meeting regarding his economic proposals.
If much of what has been the Trump Administration was not enough, those words are now painfully ringing in the ears of Democrats in the aftermath of President Donald Trump’s second nomination to the U.S. Supreme Court in less than eighteen months: District of Columbia Circuit Court of Appeals Judge Brett Kavanaugh.
As they say, Karma is a…well, let’s just say it ain’t pretty.
The idea that elections have consequences has not been lost on grassroots Republicans—in fact it has been a driving force behind what has animated the Republican base since 2009. And at the heart of that has been the Supreme Court.
Republican voters for over two generations clamored for its leadership to get the nation’s highest court in basic alignment with the party’s conservative agenda. It didn’t happen. Of the 15 justices Republican presidents have named since World War II, five — Earl Warren, John Brennan, Harry Blackmun, John Paul Stevens and David Souter — inevitably anchored the “liberal wing” of the court. Anthony Kennedy and Sandra Day O’Connor, both Ronald Reagan appointees, became “swing votes.” Of the seven justices named by Democratic presidents, all were consistently liberal.
But in 2016—not even knowing if he would win the presidency—Trump made a clever deal to unify Republicans behind his candidacy. He pledged to nominate a Supreme Court justice from a list of very accomplished judges vetted by the Federalist Society and the Heritage Foundation. The list was decidedly conservative; and not heavily comprised of your typical legal elites. Base Republicans loved it; and had, in effect, a contract with its presidential nominee—one President Trump would honor soon enough.
Meanwhile, Democrats were focused less on what the next president of the United States could do with a Supreme Court nomination and more on who that next president would be. Consequently, the election saw Democrats lose both the White House and the U.S. Senate.
In 2017, the GOP-controlled chamber confirmed Trump Supreme Court nominee Neal Gorsuch to replace the late Antonin Scalia. But the price paid by Democrats was avoidable.
In 2013, in an act of pure arrogance, Democrats led by then-Senate Majority Leader Harry Reid voted along party lines to change Senate rules to limit the Republican minority from blocking presidential nominees. Under the new rules, presidential nominees for all executive-branch positions and judicial vacancies below that of Supreme Court could be confirmed with a majority of just 51 votes. The so-called “nuclear option” effectively eliminated the longtime 60-vote threshold for overcoming a filibuster on nearly all nominations.
In response, then-GOP Minority Leader Mitch McConnell issued a warning to the Democrats: “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”
Well, “sooner” has just happened.
Had newly minted Senate Minority Leader Charles Schumer been less focused on pay-back for the GOP blocking of the Merrick Garland nomination and thinking strategically to avoid Senate Republicans from applying the nuclear option on the Gorsuch nomination, then perhaps now finding themselves on the losing end of a 49-51 Senate divide would not be the judicial desert the Kavanaugh nomination has become for them.
As the “advice and consent” process begins on Capitol Hill, Democrats are left with only public protests, wild accusations and threats and the occasional awkward moment of truth. They are up against “Gorsuch 2.0.” Judge Kavanaugh’s very impressive 12 years on the D.C. court includes 300 opinions on many vital constitutional issues and “the experience and intellect to be a leader on the [Supreme] Court.” Even if a Republican or two could be peeled away, remember that five Democratic senators are up for re-election in states that Trump overwhelmingly carried—and they voted for Gorsuch.
But the Kavanaugh nomination will be a cakewalk for Democrats compared to what may well be the “Mother of all Battles” if either or both Justice Ruth Bader Ginsburg or Justice Stephen Breyer retires from the bench during the Trump presidency. Should that occur, for President Trump his role is straight forward: stick to the list. For Mitch McConnell, his mission is clear: confirm a reliable conservative, constitutional majority. And for Democrats, well, they are staring at a potential 6-3 or even a 7-2 conservative majority on the court with virtually few to no options to prevent it.
Yeah, that firmly anchored, conservative Supreme Court could happen—sooner than you think.