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For a president whose decision of the Supreme Court was seriously threatened last week, Donald Trump seemed, at least initially, almost jaded. Leaving the White House Wednesday to review the hurricane damage in North Carolina, he said it was "very unfair" that Brett Kavanaugh, his "outstanding" candidate, had to deal with to the allegation of Christine Blasey Ford assaulted her when both were in high school. Ford said the attack had derailed him socially and academically for years; Kavanaugh denied being involved in such an incident. "It's very difficult for me to imagine that something has happened," said Trump, as if, like many other men who hear a woman's story, including stories about Trump himself, one could hardly fix the details.
It was a task for someone else, but not, as Ford hoped, for the F.B.I. "Let the senators do it. They do a great job, "said Trump, shrugging his shoulders. He added, citing the possibility that Ford will appear before the Senate Judiciary Committee this week, "Look, if it shows up and makes a credible demonstration, it will be very interesting, and we will have to make a decision." By "us," Trump meant "I," and his comment pointed to an ugly aspect of Kavanaugh's investiture that is unquestionable. In a few years or even weeks, there will be another round of confirmation hearings. There are always, and each was shaped by the precedent, as the parties go back to the last war on a new array of legal writings and personal journeys.
Such litigation, however, is not the same thing as acquired wisdom. Twenty-seven years after the Republicans of the Judiciary Committee of the Senate tore Anita Hill, then voted to confirm Clarence Thomas, who she said sexually harassed her while he was his boss, the committee has not yet understood how fall under the umbrella of #MeToo. But the two sides have also failed to find a solution to the problem of Donald Trump, an unstable bigot who expects his attorney general to settle his many legal problems and that some fear that the court appointees supreme do the same.
"Look, when I decided for the first time to run, everyone said that the most important thing you do is the justice of the Supreme Court," Trump said Wednesday. The election gave him that power, with the help of a slim Republican majority in the Senate. This is part of the 2016 tragedy and Kavanaugh's hearings served as a sour reminder. Again, the midterms are only a month and a half. Senator Lindsey Graham, Republican of South Carolina, succinctly expressed G.O.P. concerns about November last week, saying that the calls for the F.B.I. Investigating Ford's allegations "is not about finding the truth, but delaying the process after the mid-term elections."
Truth matters more than halftime, but Graham's charge, which Trump echoed in furious tweets on Friday, raises a useful question. Do Democrats have a Supreme Court game plan after mid-term? They must first rely on the possibility that they will not like the election results. If Kavanaugh is not confirmed, Trump will probably let out a long cry of grievance, urging his base to send him more loyal senators. And, in November, the base could deliver.
If so, there is little reason to hope that a post-mid-term Republican majority – one more indebted to Trump – would do better than the current majority, which sped up the first part of Kavanaugh's hearings. Republicans ignored not only his extreme views on issues such as executive power, gun control and reproductive rights, but also his obscurity, if not lies, in committee. While Republicans treated these basic problems with unseemly indifference, the Democrats, on the other hand, lost time and credibility during their major incursions. President Trump may think that senators do "a very good job," but they can not honestly think so.
A number of recent factors have pushed the process to its current state. First, the dishonorable treatment of Barack Obama's candidate, Merrick Garland, that Mitch McConnell, the majority leader in the Senate, refused to grant even a hearing, leaving a seat open for more than a year. Then, to confirm the appointment of Trump's first candidate, Neil Gorsuch, McConnell put an end to the filibuster to oppose Supreme Court appointments – the number of votes required to confirm less relevant. The two acts have in common a preponderant circumstance: the will of G.O.P. report to Trump. Midterms, again, can only make things worse.
But there is a chance that Democrats will take the Senate; that's why Graham and his colleagues are so worried. What would the Democrats do then? One option would be to keep an open court seat for the next two years, or the next six, if Trump is re-elected. But if what was done in Garland was dirty and false – and it was – the Democrats should not do the same. And while they may energize their own base, it could mean losing the rest of the environment and the legitimacy of the court. They need a better strategy than to imitate Mitch McConnell.
Reject as many unsustainable or extreme candidates as Trump approaches, though – taking them one at a time, giving everyone a fair and open hearing – would make sense in a way that blind delay does not involve. If Kavanaugh's confirmation fails, no one should expect Trump's next choice to be entitled to a seat. After the defeat of Robert Bork's appointment in 1987, largely based on his extreme jurisprudence, Ronald Reagan's next choice, Douglas Ginsburg, withdrew after reports of his use of marijuana were published. . This opened the door to Anthony Kennedy, who, in this case, was worth being held. It also took Richard Nixon three attempts to find a confirmable replacement for Abe Fortas, before succeeding with Harry Blackmun, the judge who drafted the decision in Roe v. Wade. Democrats must win such struggles in a manner consistent with their principles and identity. To do this, they will have to define themselves clearly, an exercise that can only help them in the task they must perform if they really want to have the task of shaping the courts: winning elections. ♦
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