Right Opinion

Supreme Court Tactics

Bill Wagner · Jul. 2, 2018

A 28-year-old Hispanic communist woman community organizer defeated one of the top establishment Democrats, Rep. Joseph Crowley, in the 14th Congressional District in New York City last week by 15 points. When asked what this meant for Democrat Party leadership and strategy in the midterms, House Minority Leader Nancy Pelosi, with her typical arrogant flair, said something like, “Well, it’s only one district, and I’m a progressive woman, so what’s your point? Next question.”

In a sense, she is exactly right. New York’s 14th Congressional District is 80% minority, and Crowley is, after all, an old white guy. But some other stats are enlightening. The district has about 240,000 registered Democrats, 28,000 of whom, or about 12%, voted. The winner, Alexandria Ocasio-Cortez, got around 60% of the vote, which means that about 17,000 Democrats voted for her. There’s no question that the result was an earthquake, but if 17,000 voters in a heavily minority, ultra-safe Democrat district can totally sway the party’s strategy, it never had one to begin with.

And yet at the top of the winner’s wish list is the abolishment of ICE. So precisely on cue, the next day every Democrat in captivity made getting rid of ICE their top priority. When a few enterprising reporters asked if this meant that criminal illegal aliens, who are the primary target of ICE enforcement, were going to be given a pass, the Democrat leadership backstroked and tried to portray the real agenda as “repurposing” ICE to only go after “criminals.” When it was pointed out that people who enter the U.S. illegally are by definition criminals, Democrats retorted that these border crossers have merely committed misdemeanors. When the next logical question came — “Does that mean you are essentially in favor of open borders?” — the response was something like, “Hey, how ‘bout them Yankees!”

The fact is, “abolish ICE” has about as much resonance with the voting public — even those focused heavily on immigration — as pushing increased aid to Honduras for border control. The Democrats’ fingers are planted firmly in the wind, so we’ll see if free health care, free college, and guaranteed minimum income work their way to the top of their wish list as ICE fades.

The point is that Democrats have the grand total of zero in the way of a positive agenda and flit from mostly negative issue to negative issue. The original primary platform was anti-Donald Trump. But as Russian collusion, obstruction of justice, and claims of dictatorial mandates are coming up empty, and as Trump’s approval ratings continue to climb, Democrats are scrambling for the next shiny penny. Stoking Trump fears is still in the pole position, but then along came Justice Anthony Kennedy, and the Democrat leadership, activist groups and media went bananas.

The New York Times set the tone in its front-page article the day after Kennedy made his announcement. Consider this excerpt, which perfectly captures the fear tactics to follow (my scare quotes): “Kennedy has been a critical swing vote for decades as he ‘embraced’ liberal views on gay rights, abortion and the death penalty, but helped conservatives ‘trim’ voting rights, ‘block’ gun control measures, and ‘unleash’ campaign spending by corporations.” Fair and balanced, no?

Not to be outdone, the legions of Democrat spokespersons and media pundits piled on, predicting the end of civilization as we know it when Kennedy is replaced by a radical right-wing extremist judge who’s hell-bent on abolishing civil, gay and women’s rights and upholding Trump’s fascist tendencies. No one is sure exactly who the nominee will be, but it doesn’t matter. Like George Carlin’s famous seven words you can’t say on TV, he or she is certainly going to be “really bad.”

The strategy and tactics of both sides as a nominee is moved forward is, to say the least, not easy. There are only a couple hundred moving pieces. So, let’s start with the most straightforward.

If the GOP sticks together, Democrats have no ability to block the nominee. True, Trump might have a shot at picking off a few Democrat votes. It is, after all, an election year, and there might be a couple GOP senators who, either out of spite or single-issue concerns, oppose a nominee. But Trump has been vetting nominees since his campaign. Recall that he actually used his list as a campaign plus, and it worked. He has also been working the room with Kennedy for a year to assure him that he would not trash his legacy with a radical replacement. There is no way he is going to risk nominating someone perceived as an extreme right-wing conservative. That will make it extremely tough for any GOP senator to leave the reservation. It would also virtually guarantee that Trump will have the votes regardless of what Democrats do.

As an aside, while everyone on Trump’s list is eminently qualified, my preference would be Amy Coney Barrett. There are several reasons, but two stand out. First, she is a woman and would tie the Democrats trying to discredit her without alienating their #MeToo base in knots. Second, she has recently been through a successful confirmation hearing in which the primary Democrat objection came from Sen. Dianne Feinstein, who claimed that an innocent statement from Barrett about her faith disqualified her from being able to rule independently on cases involving religion. It flopped then, and if that’s the best Democrats can do, it will flop even more dramatically now. She is a smart pick from a judicial standpoint and an even better one politically. But I digress.

How will Democrats react? The bottom line is that they need a campaign issue that has a chance of resonating, and they need to rile their base. In spite of vague predictions of a big blue wave, nothing so far has moved the dial, but a Supreme Court nomination is seen as a gigantic hanging curve ball. So, be prepared for Democrats to go full-bore unhinged. The over-the-top rhetoric we have seen so far is merely the appetizer. Grab your seat belt.

As predicted, the initial blocking attempts have involved delaying the vote until after the elections on the absurd rationale that a presidential election is the same as the midterms. When that didn’t pass the laugh test, second prize was that we must delay the vote until Special Counsel Robert Mueller has completed his investigation on the theory that we can’t have a president who might be indicted for stealing the election illegally making a lifetime Court appointment. That one didn’t make it either, so Democrats dispatched a liberal law professor to write a New York Times op-ed claiming that the vote must be delayed because a Trump case involving the emoluments clause will certainly make it to the Supremes, and it would pose an unacceptable conflict if Trump were able to appoint the swing vote. And no, I am not making this up.

Democrats desperately want the Supreme Court vote as a campaign issue, but regardless of the fact that blocking the nomination is a triple bank shot, it is all they have and will be viewed as a turnout weapon. Democrats will be told they must get out to vote so Trump doesn’t succeed in destroying all their rights, but party officials will neglect to inform their voters that it’s a long shot.

There are possible peripheral benefits to this approach as well. Since the Democrat hierarchy knows full well that a block is a Hail Mary pass, since control of the Senate is all but beyond its reach, it also knows that increased turnout might help it at the House level. It might also believe that attacking the nominee could sway some GOP senators or at least make them more vulnerable at the polls. But that depends on Trump nominating a radical, which he will not do.

Finally, it might send a signal to Justice John Roberts, who has a soft spot for avoiding controversial decisions that could move society and compromise the “image of the institution” (can you spell Obamacare “tax”?). A shot across his bow to remind him of the heat he would take by swinging the wrong way could move that dial when future cases appear before him. In any event, it all adds up to Democrats setting new world records for the most vitriolic attacks in Supreme Court history.

Trump’s tactical considerations are a bit more complicated. It starts with who the nominee should be. He has any number of good candidates who are conservative and clearly qualified, but he certainly will not risk losing any GOP senators or handing ammo to Democrats by picking someone closer to the far-right fringe.

Next is the timing. Politically, this can cut both ways, but I come down on the side of pushing for the vote before the Court reconvenes in October. In other words, before the elections. A delay has the potential benefit of further rallying the GOP voter base. The GOP has become quite good at using the Supreme Court as a voting issue. Arguably, it made the difference, or at least a significant difference, in 2016. So having the issue as a dueling turnout variable could very likely help the GOP more than Democrats.

But there are a number of reasons that go the other way. First, the most obvious — anything can happen. If the vote can be assured before the election (which, if the nominee is as expected, should be a high-probability event), then even the tiny risk that a blue wave could tilt the Senate is eliminated.

Second, think about the bind this puts Democrats in and what is likely to happen if the Supreme Court issue is removed at the eleventh hour. Democrats will almost certainly pull out all the stops to rally their base by making the appointment a critical election issue, possibly even eclipsing the anti-Trump rationale that is having a hard enough time getting traction now. Consider what it will it do to the mindset of the typical Democrat voter if lawmakers devote the bulk of their energies to blocking the Supreme Court nominee for the next four months and then have their cause célèbre rug yanked out from under them three weeks before the election.

True, that may depress some GOP turnout, but my calculus says it would depress Democrat turnout even more. There is a big difference between being relieved and being demoralized. As much as I hate to see a calculus based on depressing the Democrats’ turnout more than ours, pushing for an October confirmation vote is smart politics.

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