Democrats can be expected to offer overblown or even goofy objections to President Trump’s nominees to the Supreme Court. But they’ve outdone themselves in the case of Brett Kavanaugh, a superbly qualified federal judge.
There are two factors that could affect the Kavanaugh nomination unfavorably, and Republicans might not see them coming. And no, a new twist on Roe v. Wade isn’t one of them.
As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh proposed a compromise in a 2017 case involving a pregnant 17-year-old girl, an illegal immigrant, who wanted an abortion. Kavanaugh wouldn’t have granted it immediately. His liberal colleagues overruled him.
The pro-abortion forces claim Kavanaugh’s actions indicate he’s ready and willing to toss Roe into the dead bin. But Democrats appear unsure they can convince enough people of this disaster. Which is why they’ve seized on the fate of Obamacare as their chief cudgel.
And so we turn to the two possible pitfalls—both long, long shots. The first is a lawsuit filed by 20 Republican state attorneys general in April, three months before Kavanaugh was nominated. It argues that Obamacare is unconstitutional because the fine it imposes for failing to buy health insurance was eliminated by last year’s tax reform bill. And since Chief Justice John Roberts had based his vote to uphold Obamacare on the notion the fine was actually a tax, the health care program had lost its fifth vote. And besides, it had become unconstitutional.
That sounds a bit complicated. The nub of the maneuver is that the lawsuit could reach the Supreme Court. And its newest justice, Kavanaugh, would then be the fifth vote for getting rid of Obamacare. You can see where it’s headed—if the Senate doesn’t block his confirmation, you’ll lose your health care. It’s a stretch to think this might work, but Democrats believe they can get away with saying anything about health care. They think they own the issue.
They follow up with further preposterous claims. Former Virginia governor Terry McAuliffe puts it this way: Kavanaugh’s nomination “will threaten the lives of millions of Americans for decades to come and will morph our Supreme Court into a political arm of the right-wing Republican party.”
This isn’t a fringe character talking. McAuliffe, a pal of the Clintons, wants to be president and from all appearances is getting ready to run for the Democratic nomination in 2020.
Senator Kamala Harris (D-Calif.), who also is being touted as a 2020 candidate, upped the ante. Kavanaugh’s nomination, she says, “presents an existential threat to the health of hundreds of millions of Americans.” Rep. David Cicilline (D-R.I.) is a cooler head. He says tens of thousands “will die if this bill passes.” He misunderstands one thing: It’s a lawsuit, not a bill. But don’t quibble. Democrats are on a roll.
There are two big flaws in their hyperbole. The prospects of the lawsuit’s ending Obamacare are quite poor. And even if it did, America wouldn’t sit still. A new health system would quickly be created, probably a better one than Obamacare.
The second long-shot attack involves GOP senators Susan Collins and Lisa Murkowski. It’s dawned on Democrats that arguing Neil Gorsuch would be the fifth vote to kill Roe didn’t work with them last year, and isn’t likely to work against Kavanaugh now.
Collins and Murkowski voted for Gorsuch and seem a fair bet to back Kavanaugh too. The two senators did take a hike, though, when Republicans sought to “repeal and replace” Obamacare. And with their help, Republicans were thwarted. So why not try to peel them away from their party on Kavanaugh’s confirmation, only with wild claims about health care?
Farfetched? For sure. But Democrats’ chances of keeping Kavanaugh off the Supreme Court are mighty slim. It makes sense to swing for the fences. Democrats can get away with calling Republicans killers, labeling them racists, or causing an uproar. The press won’t mind if they insinuate that Kavanaugh’s a killer.
In the Trump years, Democrats have turned to tantrums and disruption. At the House hearing where FBI official Peter Strzok testified last week, Democratic members yelled “point of order” over and over when Strzok was in trouble. Republicans were blamed for letting things get boisterous.
Just wait. If Democrat resisters are willing to pounce on Republicans as they leave a restaurant, imagine what they’ll do at the Kavanaugh confirmation hearings. Remember Virginia senator Tim Kaine at the vice presidential debate in 2016? He interrupted Mike Pence every time Pence started to talk, and it wasn’t because he was into a spirited exchange of views. Saul Alinsky would have been proud.
Chuck Grassley, chairman of the Senate Judiciary Committee, has made a deal with Democrat Dianne Feinstein to let Democrats look at tons of Kavanaugh documents. Will Democrats act in good faith and limit their demands? Of course not. They’ll claim a need to see every piece of paper that crossed Kavanaugh’s desk at every job he’s held.
They want to delay the hearings as long as possible, past the first Monday in October, even past the midterm election. That’s Democratic leader Chuck Schumer’s idea of a clever tactic.
Grassley will get tough. He’s already stopped Democrats from using “blue slips”—the traditional delaying tactic of home-state senators from the other party. If the Democrats try to slow-walk Kavanaugh, he’ll crack down again. And Mitch McConnell will have his back.
