Spartacus Won't Save the Left
At best, the average judicial confirmation hearing is a stodgy affair. Confirmation hearings are often just preordained formalities, so they naturally devolve into insipid cocktails of effusive hobnobbing, insidery posturing, and listless attempts at scoring a stray “gotcha” soundbite. If you get lucky, perhaps a few tepid dad-jokes get served as chasers.
In perhaps a shocking turn of events, Brett Kavanaugh’s Supreme Court hearings made for some grade-A primetime television. Cory Booker channeled his inner Spartacus, the handmaids escaped from Gilead, and the sedate Orrin Hatch lost his cool at the uncivilized common folk. And, as an added bonus, the Kavanaugh hearings left us with a bounty of quality memes.
However, for some progressives, last week’s fracas on the Senate floor was more than a mere spectacle. Instead, the Kavanaugh hearings represented the bellwether of a vaunted Resistance, an augur that progressives are finally taking the judiciary seriously and are ready to take up arms to defend it. Well, if this is the left’s awakening to the profound importance of the Supreme Court, it’s too little, too late. The left didn’t lose the Court when Justice Kennedy stepped down; it ceded it years ago, with little more than a whimper.
The recent sexual misconduct accusations against Brett Kavanaugh have certainly thrown a wrench in the process. These allegations are deeply disturbing, and they unquestionably should be probed to the fullest possible extent.
Yet even if Kavanaugh’s accuser manages to survive the Anita Hill treatment and the judge’s nomination is withdrawn, nothing will have changed on the scoreboard. Trump will just dig deeper into his Federalist Society-curated shortlist, and the twenty-first century Lochner Court will be postponed until, maybe, December. Democrats will have already expended all their political capital on scuttling Kavanaugh.
Regardless of how the Kavanaugh scandal plays out, the left will still be staring down the barrel of the most conservative Court of the last 80 years. For the next few decades, women’s reproductive rights, LGBTQ+ rights, affirmative action, and the administrative state will be on the chopping block; expansive police powers, voter suppression, and slinking around the “political thicket” of gerrymandering will stay on the menu.
And, in all honesty, Democrats are partly to blame for this reality. A hypothetical Supreme Court with Merrick Garland and a more middle-of-the-road nominee from the Trump presidency would not be a profound shift from previous iterations of the Roberts Court, and it certainly wouldn’t be a non-starter for progressive legal goals. But, time after time, Democrats rolled over, and eventually handed the crown jewel of the American presidency, a Supreme Court appointment, to Donald Trump, without much of a fight.
Sure, Republicans should, rightfully, be excoriated for their role in this debacle. Mitch McConnell’s norm-shattering “judicial hardball” strategy was an unconscionable, despicable travesty; history will not look favorably upon these reckless actions, and the opportunistic choices of the Republican Party will send reverberations through the judiciary for decades to come.
However, when Republicans played Constitutional hardball, Democrats showed up with Wiffle Ball bats. In the last decade, Democrats have stood by idly as Republicans have indiscriminately blocked Obama’s lower court nominees, sunk the Garland nomination without coherent justification, and dismantled the Supreme Court filibuster. Their only response? The “nuclear option”, a cowardly and ineffectual comeback, that, in the short-term, gave Mitch McConnell the pretense to squeeze Gorsuch through on 54 votes, and in the long-term, opened the floodgates to a hyper-polarized judiciary.
The future outlook of the Court certainly won’t be decided at Kavanaugh’s confirmation vote, or at the vote of any other Trump short-listers waiting in the wings, for that matter. In retrospect, the Court’s future was primarily determined at these aforementioned critical, unglamourous points on the Senate floor from the last six years. And yet, at these crucial junctures, with the fate of the Supreme Court at play, I certainly can’t recall any senators having Spartacus moments.
Yet in some respects, this shouldn’t be surprising. Legislators aren’t rogue mavericks who fall on their swords. The currency of Congress is the capital of public opinion, and the intricacies of the judiciary just aren’t as attention-grabbing as abortion or immigration. And while hindsight is 20/20, one thing is for certain: the left has consistently lost the ground-game of political organization to the right. The legal sphere is no exception.
While the progressive American Constitutional Society has grown in influence, it’s hard to argue that it currently serves as a sufficient counterweight to the cohesion and brute force of the Federalist Society. To make matters worse, Trump already got bored and handed the Federalists his judicial appointment powers, and it’s pretty hard to compete with that.
Furthermore, the legal left has stumbled around awkwardly in the dark money landscape of post-Citizens United politics. At present, Democrats don’t have the big guns in their arsenal; on paper, they can’t put vulnerable purple state senators in the crosshairs of a Judicial Crisis Network to ensure compliance.
Yet, most importantly, Democrats haven’t effectively incorporated the judiciary into their political messaging. For better or worse, Trump explicitly promised voters that he would appoint a justice to overturn Roe v. Wade. Moderate conservatives even used the vacant SCOTUS seat as a moral absolution of Trump’s laundry list of sins; Hillary Clinton mobilized no such coalition on the left. Maybe if the DNC had swallowed its pride and sold some off-brand “But, the Supreme Court…” bumper stickers, the stragglers would have held their noses and went to the polls, and this fiasco could have been avoided in the first place.
Supreme Court vacancies may simply be a product of luck. It is truly bizarre, if not deeply problematic, that a single party has filled 14 of the last 18 Supreme Court Seats.
By contrast, judicial nominations are a product of strategy. It’s 2018, and we should finally drop our sanctimonious pretenses. It’s possible to maintain the belief that judges are methodology-constrained, law-beholden arbiters while still acknowledging that they rise to the bench through a highly politicized process. The left has lost key nomination battles because it wasn’t ready for trench warfare. If it doesn’t start manning the trenches, I have little faith that it won’t keep failing down the road.
That Cory Booker has finally discovered martyrdom under the glow of the spotlight will probably serve him well in 2020. However, Mr. Booker, why the hell didn’t your Spartacus moment come when it actually mattered? You already missed your shot; the left was doomed to face the Lochner Court 2.0 long before your theatrics, and Democrats certainly don’t need your nauseating grandstanding right now.
Dry your crocodile tears, dust yourself off, and go work with the rest of your party to develop the ground-game that ensures Democrats never sacrifice a Supreme Court vacancy again. The battle for the judiciary isn’t fought in front of the cameras; it’s won behind closed doors.