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How Dems Should Handle SCOTUS Nominee

July 30th, 2018 by dk

If the Democrats in the U.S. Senate cannot induce at least one net defection from the Republican ranks on the confirmation of Brett Kavanaugh to the Supreme Court, they should shift dramatically to Plan B. Plan B should consider a longer timeframe than they typically use. There may even be a deal still to be made with President Trump.

Democrats plan to use their airtime during the confirmation hearings to talk about healthcare, which their pollsters tell them will help in the next election cycle. Their speeches will look good in TV ads during their next campaign. The fight will energize their base. That is probably good advice, as far as it goes. But it doesn’t go far enough.

Democrats want to shine a spotlight on the Affordable Care Act and a woman’s right to choose to end her pregnancy. But there will be time to follow a second track as well — one that may not help them in their next campaign. Instead, it could save the country.

The bald-faced truth is this. If they cannot sway at least one vote from a Republican colleague, every liberal cause celebre should be considered lost, for the foreseeable future. Elections have consequences. If they don’t have the votes, fighting as if they do would be just for show. Meanwhile, the show itself could very quickly get much worse.

Senators should ask Kavanaugh about his views on judicial recusal. When should a sitting judge refuse to vote on an issue where he or she may have a perceived conflict of interest?

First, should a judge’s recusal — which is almost always voluntary — require an actual conflict, a possible conflict, or the appearance of conflict? Second, will Kavanaugh pledge to recuse himself — and encourage Justice Gorsuch to do the same — if the Supreme Court is called on to hear any case where Donald J. Trump is named personally as a defendant?

Gorsuch and Kavanaugh both attended the same prep school in Georgetown. They clerked together for Justice Anthony Kennedy. And now they have one more thing in common. They both have been nominated to the Supreme Court by a president whose legitimacy is under active inquiry.

Kavanaugh’s pledge to recuse himself from any case that involves his benefactor as a private citizen could have an outsized effect. It could convince Gorsuch to follow suit and it could please the only person who could be considered his boss. That won’t be the president.

Chief Justice John Roberts has made known on multiple occasions that he cares deeply about his court’s integrity and independence. He doesn’t want anything that will harm the institution he is charged with leading. Recusals demonstrate in real time a devotion to fairness.

If Democrats broker this pledge from Kavanaugh, the benefits of that magnanimity could redound for decades. If you don’t believe Justice Clarence Thomas thinks about Anita Hill and his Senate hearings every day, then you don’t know very much about human nature.

Some will insist that any vote for Kavanaugh is a vote to outlaw abortions. The retort is this: every liberal who didn’t vote in 2016 hastened this outcome. Elections matter. Believing anything else is magical thinking.

Voters choose their leaders and then the leaders must lead. Lacking the votes — in this case, probably the vote, singular — to change the outcome, preserving the institutions involved should prevail. Partisanship is great for electioneering and fundraising, but it should stop getting in the way of the real work that must be done.

Senate Minority Leader Chuck Schumer should allow every woman in his caucus to vote her conscience, but every male senator should vote to confirm the nominee, if he’s willing to pledge his recusal if and when that time comes.

Winning over a large bloc of Democratic senators could upset the status quo in ways that serve the institutions and the people charged with leading them. President Trump and Senate Majority Leader Mitch McConnell may even be willing to consider a side deal, in return for a clear victory on this confirmation vote.

Let Merrick Garland be nominated to fill the next vacancy on the Supreme Court.


Don Kahle ( writes a column each Friday for The Register-Guard and blogs at

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