The Democratic Dream: Defeat Kavanaugh, win the Senate and stop Trump Supreme Court picks

If Kavanaugh’s nomination falls apart in the face of sexual misconduct accusations, Trump faces the very real possibility that he could lose his chance to put even his second choice in this seat, which holds the balance between conservative and liberal wings on the nation’s most important court.

Democrats need to pick up only two seats in the midterm elections six weeks from Tuesday to take control of the Senate and their anger over the Republican refusal to even consider President Barack Obama’s last nominee for the Supreme Court in 2016 is unabated. If Democrats take charge, they could block any choice Trump sends up or at least force him to pick a candidate more to their liking.

“Saving the Supreme Court from Trump’s clutches has always involved a very complicated two-step: first, block Kavanaugh, then fight like hell to win back the Senate,” said Brian Fallon, a 2016 campaign adviser to Hillary Clinton who helped start a group called Demand Justice to fight conservative judicial nominations. “If Kavanaugh drops out, we’re halfway there. If Democrats are able to win back the Senate, we’d have a path to blocking Trump from picking any of the archconservatives on his shortlist.”

That scenario helps explain why Trump and Sen. Mitch McConnell, R-Ky., the majority leader, are so determined to push through Kavanaugh rather than replace him with a less damaged candidate. McConnell vowed on Monday to hold a floor vote on Kavanaugh’s nomination regardless of what happens during Thursday’s hearing on a sexual assault allegation against him.

With a 51-to-49 majority, Trump and McConnell have almost no room for error. If Democrats unanimously oppose Kavanaugh, then Republicans can afford to lose only one member of their own conference to push through confirmation on the tiebreaking vote of Vice President Mike Pence. If they lose two, the nomination would be defeated.

While Trump could immediately nominate a replacement, it seems unlikely that the Senate could vet the candidate, hold hearings and confirm him or her before the Nov. 6 elections. If Republicans keep the Senate, then McConnell presumably could push through a new nomination in the lame-duck session afterward.

But if Democrats win, it would be hard for McConnell to proceed with confirmation during the lame-duck session given that he blocked Obama’s nomination of Judge Merrick B. Garland before the 2016 election by arguing that the vacant seat should be filled according to the will of the voters. By doing so, he saved the seat for Trump to fill last year with Judge Neil Gorsuch.

Republicans said Democrats were trying to sabotage Kavanaugh’s nomination, or at least delay it long enough in hopes of payback.

“Clearly, the ultimate goal of Senate Democrats is to avenge their perceived injustice of Merrick Garland,” said Josh Holmes, a former chief of staff to McConnell. “The only way to accomplish that is to burn the clock on this nomination by any means necessary in hopes that they win the majority in the Senate and deny President Trump an appointment for the next two years.”

Some Democrats have openly suggested that they would try to follow the precedent set by McConnell and leave the current vacancy unfilled if they take charge. A Democratic Senate leader and a Democratic Judiciary Committee chairman could presumably prevent a nominee from even coming to a vote, just as McConnell did.

“I think we’ve had those kinds of vacancies before, and we certainly had over a one-year vacancy with Merrick Garland,” Sen. Mazie K. Hirono, D-Hawaii, a member of the Senate Judiciary Committee, told Politico Magazine’s “Off Message” podcast last week. “So the world does not come to an end because we don’t fill all of the nominees.”

Of course, just as McConnell would have to explain a change in position, Democrats would be pressed to justify a prolonged vacancy given their “We Need Nine” slogan, as they named an advocacy group that pushed for Garland’s confirmation two years ago.

But nothing in the Constitution requires that the Supreme Court have nine justices; the number of seats is set by law and fluctuated in the early decades of the republic. In what was seen as a bid to thwart President Andrew Johnson from making appointments in the mid-1860s, Congress reduced the number of justices to seven from 10 and then later increased it to nine in 1869 after Johnson left office, the last time it has changed.

A two-year vacancy without changing the law, however, would go further than any Congress has gone in decades to prevent a president from using his power to appoint justices. Some Democrats dismissed such talk as Republican spin to compel wavering members like Sen. Susan Collins of Maine to stand by Kavanaugh for fear of what would happen if they reject him.

“To me, it sounds like they’re trying to prop up the idea that it’s Kavanaugh or bust as part of a pressure campaign on undecided members like Collins,” said Adam Jentleson, a top aide to former Sen. Harry Reid of Nevada, the onetime Democratic leader. Jentleson is now the public affairs director at Democracy Forward, a group that has sued to stop some of Trump’s policies.

Whether Democrats could actually manage to block any Trump appointee from confirmation if they did win is hardly a given. At best they would have a narrow majority and Democrats historically have had trouble maintaining the sort of party discipline in the Senate that McConnell has enforced on the Republican side. They could, though, press Trump to choose a nominee who would appeal more to moderates.

The defeat of a Supreme Court nomination can make a profound difference. After President Richard M. Nixon lost two nominees in a row, he appointed Harry A. Blackmun, who wound up being the author of the Roe v. Wade abortion decision and other liberal rulings.

Almost the same thing happened when President Ronald Reagan nominated the staunch conservative Robert Bork. After Bork was defeated in the Senate and a second choice later withdrew, Reagan tapped Anthony Kennedy, who ended up writing the Obergefell v. Hodges same-sex marriage decision and other rulings anathema to the right. Kennedy retired this summer, opening the seat that Trump hopes to fill with Kavanaugh.

It has played out the other direction as well. When Bush nominated Harriet E. Miers, conservatives suspected her of being insufficiently committed to the cause, leading to her withdrawal and to the appointment instead of Samuel Alito, who has compiled one of the most reliably conservative records on the court over the past dozen years.

Rarely has a partisan confirmation battle over a Supreme Court nomination grown so heated so close to an election. While many compare the fight over Kavanaugh’s nomination to that over Clarence Thomas in 1991, that showdown took place more than a year before the next election.

In this case, voters have already begun casting ballots in some locales as the national conversation focuses intently on whether Kavanaugh sexually assaulted a fellow teenager in high school. Some Democratic strategists said a successful confirmation might actually do more to help the party take the Senate by outraging women and motivating them to vote.

“Confirming Kavanaugh would spark a political explosion, exacerbate the gender gap and dramatically increase Democrats’ chance of taking back the Senate,” said Jentleson, “while an open seat or confirmation battle closer to Election Day could be a motivator for Republican voters.”

Fallon's group, formed after the blocking of Garland’s nomination, has run advertising to bolster Democratic senators in West Virginia, Indiana and North Dakota, three Republican states that went for Trump two years ago. Fallon said a takeover of the Senate would ultimately control the fate of the Supreme Court, too.

“Democrats would have the leverage to force Trump to choose a moderate caretaker-style nominee or else could keep the seat open entirely for two more years,” he said. “The stakes of the next two weeks couldn’t be higher. If Kavanaugh is forced to bow out, the midterms could suddenly decide control of two branches of government instead of just one.”

This article originally appeared in The New York Times.

The Democratic Dream: Defeat Kavanaugh, win the Senate and stop Trump Supreme Court picks

WASHINGTON — As President Donald Trump fights for confirmation of Judge Brett Kavanaugh to the Supreme Court, the stakes go beyond the fate of this particular conservative nominee. At risk for Trump is his ability to install any more conservatives on the court at all.

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