If Donald Trump is able to get Brett M. Kavanaugh confirmed to the Supreme Court, Paul Waldman is almost certainly correct that abortion rights will be eviscerated. This is also likely to happen if he gets his second, third or fourth choice confirmed. Only if the pro-choice majority in the Senate stands up to protect women’s reproductive rights is there a chance that we’ll get a Justice in the mold of Anthony Kennedy who will not upset forty-five years of precedent since the Roe v. Wade decision was decided.
As this reality comes closer to realization, I find myself feeling ashamed and reluctant to look the women in my life in they eye while discussing it. This catastrophe only became possible though a series of unlikely and extremely unfortunate events, starting with a stained blue dress, a bunch of hanging chads, the timing of Antonin Scalia’s death, the unthinkable election of Donald Trump and the colossally irresponsible decision of Kennedy to resign before the midterms. I always knew there was a risk this could happen but I also thought we’d be able to see it coming from a safer distance.
Democrats made mistakes, conservatives were willing to fight dirty, and there was a lot of bad luck. That’s what got us to this place.
But maybe the most repugnant thing of all is the resignation and defeatism of people who have given up before the fight over this Supreme Court seat has even begun. Someone will eventually be confirmed, and they’ll consolidate a conservative majority on the bench, possibly for two decades or more. But that doesn’t mean the new Justice has to be a fifth vote for overturning Roe or possibly even Griswold which established the principle that reproductive choice is too private a decision to be regulated by legislatures.
How people behave now will be noticed and reputations will be immortalized. A catastrophe has befallen the left that in some ways cannot be remedied, but there are still some things that hang in the balance. Women’s rights is foremost among them. This is not an issue that can be bargained away or played for maximum political advantage. Maybe we won’t win but if so we must go down fighting.
The president didn’t make the safest choice in picking Kavanaugh. The opposition will have plenty to work with:
Kavanaugh has served on the federal bench for 12 years. Before becoming a judge, he was a fast-rising Republican lawyer who first gained notice decades ago when he helped to investigate President Bill Clinton under independent counsel Kenneth W. Starr.
Kavanaugh has since argued that presidents should not be distracted by civil lawsuits, criminal investigations, or even questions from a prosecutor or defense lawyer while in office.
A Yale Law School graduate, Kavanaugh was plunged into national politics when he was tasked in 1994 with investigating the death of Clinton’s deputy counsel, Vincent Foster, and later with laying out the grounds for impeaching Clinton in the wake of the president’s affair with a White House intern.
That Kavanaugh doesn’t think a president should have to be accountable or obey the law when in office is probably the easiest reason to oppose him. For the older generations, his involvement in the Vince Foster investigation is a good indication of where he’s coming from and the unlikelihood that he’ll be a dispassionate and even-handed Justice. He’s an enemy of consumers and an extremist on guns. Senate Majority Leader Mitch McConnell knows he will have a fight on his hands:
McConnell did not rally around Kavanaugh in his conversations with Trump. In a Friday phone call, the GOP Senate leader instead noted that Hardiman or Kethledge could be easier to confirm in the Senate, according to two Republicans briefed on the call who were not authorized to speak publicly and so spoke on the condition of anonymity.
Realistically, the goal cannot be to prevent Trump from filling Anthony Kennedy’s seat. The goal is to defeat Kavanaugh and to force Trump to nominate someone in the mold of Kennedy as his replacement.
Are you ready for the fight?