Democrats' Weak Hand Will Be Displayed During Kavanaugh Nomination Battle

Jul 31, 2018
Originally published on July 31, 2018 11:41 am
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NOEL KING, HOST:

Brett Kavanaugh held his first meeting with a Democrat yesterday. That was Senator Joe Manchin of West Virginia. The battle over Kavanaugh's nomination to the Supreme Court is heating up, and Democrats find themselves with a very weak hand. They don't have a majority in either the Senate or the House. And because of a rule change, they can't filibuster Supreme Court nominees. As NPR's Mara Liasson reports, the Democrats' problems go way beyond Kavanaugh.

MARA LIASSON, BYLINE: Democrats are on their back foot in the fight over the Supreme Court, and their problems started long before they lost the 2016 elections. Republicans have been working for decades to get to where they are now - on the cusp of cementing a conservative majority on the court for a generation. Brian Fallon who runs Demand Justice, a liberal group focused on the courts, says Republicans played a long game and Democrats did not.

BRIAN FALLON: So this is the product of 40 years of Republicans stoking grievance about the sense that the courts were completely a runaway institution that was promoting liberal values. How the courts as an institution worked in the mid part of the 20th century created a sense of grievance on the right and a sense of complacency on the left.

LIASSON: For most of those 40 years, liberals felt confident the Supreme Court was their ultimate backstop. Civil rights, voting rights, Roe vs. Wade, gay marriage, Obamacare - all were mostly upheld. Even the recent spate of conservative Supreme Court rulings didn't seem to create a huge sense of urgency on the left. But for conservatives, the court was always a top priority says Guy Cecil of Priorities USA, a Democratic advocacy group.

GUY CECIL: They've been more focused on this, and they've had the resources and capacity to build specific infrastructure around the courts to move it ideologically over time.

LIASSON: Republicans had the resources - deep-pocketed donors like the Koch brothers - who funded organizations that created a pipeline of young conservative law clerks who went on to become young conservative judges. And the right had an activist grassroots base of voters who cared about the courts. In the last election, two times as many Trump voters as Clinton voters said their No. 1 issue was the Supreme Court, as Trump himself often acknowledges.

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PRESIDENT DONALD TRUMP: I think it's one of the reasons I got elected. I think the people of this country did not want to see what was happening with the Supreme Court.

LIASSON: Evangelical voters, for instance, cared so much about the court and its potential to overturn Roe that they were willing to support a candidate who didn't live a Christian lifestyle. But that didn't happen automatically. First, Donald Trump had to prove to conservatives that he would in fact appoint judges they would like. As he explains here to Fox News' Sean Hannity, he did it by announcing a list of conservative judges from which he promised to pick his Supreme Court nominees.

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TRUMP: And I wanted to put this list out because I wanted to quell any fears that people may have. I mean, this is a list of people that I got them from people I most respect.

LIASSON: Very conservative people, Trump said. Those people who gave Trump the list were The Federalist Society and The Heritage Foundation, two of the most important organizations in the conservative political universe. But, says Brian Fallon, there's another element of the conservatives' long game for the courts beyond money, organization and activated voters.

FALLON: Equally as important for the right has been the sort of intellectual horsepower contributed by people like the late Antonin Scalia and framing their whole judicial philosophy around the principle of originalism, something that is really just a way of cloaking a conservative judicial philosophy.

LIASSON: That philosophy helped the right groom a new generation of conservative lawyers with not just job prospects but a legal world view.

FALLON: What the left needs to match is not just an organization that has state chapters everywhere with social networking, but it also needs to hone in on more of that coherent view of what is the progressive answer to originalism.

LIASSON: And maybe that can't happen until Democrats appreciate what they've lost.

NAN ARON: The tables are turned now on progressives. It will be a whole different world for the liberals.

LIASSON: That's Nan Aron, the president of the Alliance for Justice. Her group has been fighting to get liberal judges on the court since the early '80s.

ARON: The progressive base of the party is fearful of the future and will coalesce over the next several years to prioritize this issue.

LIASSON: Aron is convinced the Democrats' fear of the future and their anger and grievance will now motivate them to raise money, develop institutions and educate voters about the courts just like conservatives did. It took conservatives 45 years from being on the losing end of Roe to being on the verge of ensuring a durable conservative majority in the courts. It might take liberals just as long.

Mara Liasson, NPR News, the White House.

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