Driving home from my Tai Chi class in downtown Salem, usually after 6 pm I listen to MSNBC on my car's satellite radio. But when I tuned in today I heard President Trump's voice, announcing his second Supreme Court pick, Brett Kavanaugh.
I quickly switched channels. The Classic Vinyl station is a good escape for me. I lucked out and heard John Lennon singing "Give Peace a Chance."
Way better than hearing Trump blab on about Kavanaugh's credentials. Ordinarily I'd be interested in listening to a president announce who is being nominated for a Supreme Court seat, but Trump's presidency is anything but ordinary.
By some 70,000 votes in a few states he won the Electoral College, while being trounced in the popular vote.
If Comey hadn't broken Justice Department precedent by twice talking about the nothing-burger investigation into Clinton's email server, and if Russia hadn't meddled in the election (possibly colluding with the Trump campaign), almost certainly we'd have the first woman president, and a liberal-leaning Supreme Court.
So I had zero interest in listening to an illegitimate president talk about his sullied Supreme Court nomination.
However, I'm very much interested in how us liberals (progressives, if you prefer that term) handle the depressing fact that almost certainly Kavanaugh is going to be confirmed by the Senate prior to the November mid-terms, thereby turning the Supreme Court more conservative than it is now, because Kavanaugh is more conservative than the judge he replaces, Anthony Kennedy.
One approach is to take an it could have been worse attitude.
I felt mildly better about Kavanaugh after reading an opinion piece, "A Liberal's Case for Brett Kavanaugh," by a Yale law school professor, Akhil Amar, who touts Kavanaugh's credentials and legal acumen.
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.
OK. But Amar's piece left me feeling like I would if a doctor told me that I should be pleased that the cancer they found would kill me in two years rather than two months. Great. But I'd rather not have terminal cancer at all.
So here's a more positive opinion piece I came across in the New York Times, "This is No Time for Liberal Despair" by David Leonhardt. He makes three points that I agree with, though I can understand why many liberals will take issue with some of what Leonhardt says.
Step one: Be realistic.
Trump’s nominee is overwhelmingly likely to be confirmed regardless of what actions Democrats take. Republicans hold the Senate majority, and every Republican senator — yes, including Susan Collins and Lisa Murkowski — has a history of voting for judges like those Trump is considering. Collins and Murkowski have a script: They make centrist-sounding statements, to shore up their images, and then vote aye.
So Democrats should go into the confirmation debate recognizing that it is almost certainly unwinnable.
...Step two: Don’t lose hope.
The Harvard political scientist Theda Skocpol has spent decades studying political power and change, from the Civil War to the Tea Party and anti-Trump resistance. She believes that Kennedy’s retirement can be a clarifying moment for American liberals.
...Remember, too, the limits of the court’s power. On some big issues, the court is not imposing right-wing policies on the entire country. It is instead refusing to ban state-based right-wing policies — like abortion restrictions and partisan gerrymandering — that progressives consider unconstitutional.
...Progressives can still win many of these issues. They simply will have to do so in a small-d democratic way, by winning elections — as they’ve begun to do lately. If Democrats win more governorships and state legislatures, they can keep Republicans from drawing ridiculous congressional maps and infringing on African-Americans’ voting rights — among many other things. If Democrats retake Congress this fall, they can halt the Republican legislative agenda and gain subpoena power.
...Step three: Know your strengths.
Some Democrats will be tempted to turn the next two months into a national conversation about abortion, affirmative action and other social issues that inspire liberal passion. That would be a mistake. Those are not the best issues for Democrats during a midterm campaign.
The best issues are those on which Democrats hold a decisive advantage in public opinion. Health insurance is a good example. So are taxation, corporate power and the Trump administration’s corruption. All of these issues can be grist for a nominee’s Senate hearing.
I’m not suggesting that Democratic senators ignore social issues. They just shouldn’t fool themselves into thinking that the country is further to the left than it is.
My favorite part of Leonhardt's advice was his reminder that much of what the Supreme Court rules on involves what states are allowed to do.
For example, it seems more likely that a Trump-packed Supreme Court would allow states to ban abortion, as opposed to the Court banning abortion nationally. So liberal-leaning states like Oregon, where I live, would continue to have permissive abortion statutes.
Polling shows that a majority of Americans favor Democratic positions on health insurance, gun control, environmental protection, carbon pollution, LBGTQ rights, keeping abortion legal, and other key issues. So even if the Supreme Court ends up allowing states to enact conservative laws on these issues, likely that would be unpopular in even right-leaning states, producing a backlash.
I recognize that Leonhardt's arguments won't totally soothe the pain liberals feel at Trump being able to fill two Supreme Court seats. But he does show a way out of the darkness that Trump is casting: work hard to win elections at the state and local level, then take back the presidency in 2020.
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