The Senate Judiciary Committee will vote on Supreme Court nominee Brett Kavanaugh by early next week. The nomination will almost certainly pass out of committee on a party-line vote, then head to the full Senate, whereupon Kavanaugh will receive at least 51 votes, possibly more, and become the newest member of the high court. Democrats are railing that Republicans rushed the nomination, but the entire process has taken about as long as the confirmations of Neil Gorsuch, Elena Kagan, and Sonia Sotomayor: between 9 and 11 weeks.
Committee chairman Charles Grassley deserves enormous credit for keeping the Kavanaugh nomination moving despite the opposition’s disingenuous howls that they hadn’t seen enough of the nominee’s paper trail. Grassley, as Fred Barnes explained in our September 3 issue, bombarded his fellow Republicans on the committee with background material to counter Democratic objections and letters from prominent legal authorities in support of the nominee. The 84-year-old Iowan put in 18-hour workdays making documents available, fielding requests from reporters and Senate Democrats, and prepping Republicans for the attacks. It has paid off—the Democratic complaints look and sound like what they are: attempts to delay the vote past the November elections.
The other key to success has been Majority Leader Mitch McConnell. In Donald Trump’s first two years as president, the Senate has confirmed 26 circuit court judges—more than for any other president in his first two years. Trump’s two Supreme Court picks have sailed to confirmation despite threats and wailing from the minority. McConnell has achieved this level of success by keeping his caucus unified and by calling for votes at the most advantageous times.
The ruthless efficiency with which the Senate GOP is filling the judiciary, however, contrasts sharply with the party’s failure to do much of anything else on the Hill. Republicans control both houses of Congress, and the president will sign just about anything they send him—yet they send him almost nothing. Apart from passing tax-reform legislation while cramming some extra provisions into the bill (notably the elimination of the individual insurance mandate), Republicans have accomplished little in the 115th Congress. The repeal and/or overhaul of the Affordable Care Act, on which most congressional Republicans campaigned for years, never happened. And, despite the growing prospect of a Democratic takeover after the November elections, they appear uninterested in trying anything else.
Why?
One answer has to do with McConnell’s excessive caution. The majority leader is more interested in increasing his caucus’s numbers and fortifying its majority than in achieving policy aims. His super-PAC, the Senate Leadership Fund, inserts itself into primary races across the nation, backing those McConnell perceives to be electable against their Republican opponents. Inside the Senate, he takes few risks.
On Obamacare, McConnell had a slim majority with which to pass a repeal or a repeal-and-replace bill, but for months wouldn’t allow votes on those bills; he did little to forge consensus around any one option. When a limited repeal bill failed, he concluded the effort was too risky and simply gave up.
Another explanation, put forward by Yuval Levin in Commentary earlier this summer, holds that while individual members of Congress crave personal notoriety, they have little desire to achieve policy ends or to arrogate political power. “Simply put,” Levin wrote,
Levin’s words appeared before the Kavanaugh hearings, which lends a special credibility to his interpretation.
Whatever the reason for congressional Republicans’ do-nothing behavior, they now find themselves in the difficult position of running for re-election on the basis of only two accomplishments—the confirmation of judges, with which GOP House members had nothing to do, and the passage of a tax bill. All the other big victories—the rollback of regulations, withdrawal from the Iran nuclear deal and Paris climate accords, the U.S. embassy’s move to Jerusalem—were initiatives of the executive branch.
Rank-and-file Republicans, whether they are fans of the president or skeptical of him, are desperate for definable accomplishments—if not an overhaul of Obamacare at least piecemeal reforms to the healthcare system; non-military budget cuts of almost any description; the elimination of the Consumer Financial Protection Bureau; and on. The aggressive work of Mitch McConnell and Charles Grassley in the confirmation of conservative judges shows that it can be done.
Thanks to Democrats’ changes to long-observed rules governing judicial nominations, confirming judges may be easier than passing substantive bills. Legislative victories are messier, and in an era of rancor and polarization they occasion fierce antagonism from activists and the much of the media. But the problems to be solved are many and serious, and time is short.
