1hundredsixty8

With Donald Trump set to announce his nominee to replace Anthony Kennedy on the Supreme Court, a betting man would say confirmation is a lock. Senate Democrats may delay a confirmation vote but they cannot prevent it. The most cynical politician of our time, Majority Leader Mitch McConnell, will ensure the vote takes place before the midterms. It may be one of the reasons he cancelled the Senate’s August recess and leads one to wonder if he had prior notice of Kennedy’s retirement. Nonetheless, the absence of the filibuster leaves the Democrats with no option but to slow-walk the process.

Powerless to prevent confirmation, Democrats find themselves caught on the horns of a dilemma: they would like to maintain the energy of their base, a base spoiling for a fight, through November. With John McCain sidelined, the GOP has only a 50-49 edge so any chance of blocking the confirmation lies by keeping all 49 Democrats in line plus wrangling a few GOP Senators. The media has pushed a Collins-Murkowski defection narrative based on the Republican women’s previous objections to a nominee not committed to upholding Roe v Wade. Jeff Flake was also a possibility given that, as a member of the Senate Judiciary Committee, he blocked nominations for the district and circuit court benches by withholding support in order to pressure Republicans to vote on Trump's controversial tariffs. Flake has since stated he would not block a Supreme Court nomination from coming to a floor vote.

(It would be a master stroke to convince Flake or other Republicans, as some have suggested, to caucus with the Democrats, giving them the majority and deposing McConnell as Majority Leader. It is a one-in-a-million shot. And there is no Democratic equivalent to the Machiavellian McConnell to engineer such a coup.)

The Democrats’ predicament is that three red state Democrats (Heitkamp, Manchin, and Donnelly) may feel compelled to vote for confirmation to avoid the issue being used against them in their re-election campaigns this fall. So does the Democratic leadership put up an all-out fight to block the nominee, drawing for the inside straight of winning some Republican votes while keeping their three at-risk Senators in line? Or do they play the long game: admit confirmation is a fait accompli and free their vulnerable Senators to vote to confirm? Retaining those seats plays into a strategy for winning back the Senate in 2020 when the Republicans will be defending about twice as many seats as the Democrats. But, in doing so, do Democrats risk turning the most energetic segment of their base, the progressive Left, against the leadership?

It is a tough call, given the looming prospect of the Court remaining solidly conservative for decades. Trump’s Faustian bargain with conservatives for their electoral support resulted in a roster of nominees carefully vetted by the right-wing Federalist Society and Heritage Foundation. As the ineptitude and corruption of the Trump Administration manifested itself, conservatives were reduced to mumbling, “But Gorsuch…”, as justification for supporting the kakistocratical reality tv personality. Replacing the libertarian-minded Anthony Kennedy with an ideological conservative offers a further rationalization for tolerating the depredations Trump is wreaking upon our governing institutions.

With few options, progressives alternate between setting their hair on fire and praying that octogenarian Justice Ruth Bader Ginsburg, a two-time cancer survivor, remains on the Court and not give Trump the opportunity to appoint a third Justice. The extent of Democratic desperation can be gauged by talk of “packing the Court” when they regain the control of the White House- increasing the number of justices to create a liberal majority. While such a move is permissible- the Constitution does not specify the number of justices*- the politicization of the Court would damage its future independence and legitimacy.

It is reality check time for the Democratic Party and other progressives. Rather than play a losing hand, Democrats should heed Bismarck’s definition of politics “as the art of the possible” and emphasize gaining control of the House in this election cycle. Elections, as Barack Obama said, have consequences. To beat back Trumpism, Congress must regain its status as a coequal branch of government. A Democratic House would be a first step.

*The court first had six members, then five, then seven, then nine, then 10, then eight; the Judiciary Act of 1869 set the number at the current nine. In 1937, President Franklin D. Roosevelt, frustrated by a conservative Court, proposed expanding the Court to 15. Even with Democratic control of both Houses of Congress, the bill was defeated.